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[Cite as U.S. v. Emerson, 46 F.Supp.2d 598
UNITED STATES of America v. Timothy Joe EMERSON.
No. CR. A. 6:98CR103C.
United States District Court, N.D. Texas, San Angelo
April 7, 1999.
Defendant moved to dismiss indictment charging him
with violation of statute prohibiting possession of a firearm while being under
a restraining order. The District Court, Cummings, J., held that: (1) statute
violated Second Amendment, and (2) statute violated defendant's Fifth Amendment
due process rights to be subject to prosecution without proof of knowledge that
he was violating the statute.
William B. Mateja, Assistant United States
Attorney, Lubbock, TX, for plaintiff.
David Michael Guinn, Assistant Federal Public Defender, Lubbock, TX,
AMENDED MEMORANDUM OPINION
CUMMINGS, District Judge.
Defendant Timothy Joe Emerson ("Emerson") moves to dismiss the
Indictment against him, claiming that the statute he is prosecuted under, 18 U.S.C. § 922(g)(8), is an unconstitutional exercise of
congressional power under the Commerce Clause and the Second, Fifth, and Tenth
Amendments to the United States Constitution. For the reasons stated below, the
Court GRANTS Emerson's Motion to Dismiss.
On August 28, 1998, Emerson's wife, Sacha, filed a
petition for divorce and application (p.599)for
a temporary restraining order in the 119th District Court of Tom Green County,
Texas. The petition stated no factual basis for relief other than the necessary
recitals required under the Texas Family Code regarding domicile, service of
process, dates of marriage and separation, and the "insupportability" of the
marriage. The application for a temporary restraining order--essentially a form
order frequently used in Texas divorce procedure--sought to enjoin Emerson from
engaging in various financial transactions to maintain the financial status quo
and from making threatening communications or actual attacks upon his wife
during the pendency of the divorce proceedings.
On September 4, 1998, the Honorable John E. Sutton held a hearing on
Mrs. Emerson's application for a temporary restraining order. Mrs. Emerson was
represented by an attorney at that hearing, and Mr. Emerson appeared pro
se. Mrs. Emerson testified about her economic situation, her needs in the
way of temporary spousal support and child support, and her desires regarding
temporary conservatorship of their minor child.
During the hearing, Mrs. Emerson alleged that her husband threatened
over the telephone to kill the man with whom Mrs. Emerson had been having an
adulterous affair. However, no evidence was adduced concerning any acts of
violence or threatened violence by Mr. Emerson against any member of his family,
and the district court made no findings to that effect. Furthermore, the court
did not admonish Mr. Emerson that if he granted the temporary restraining order,
Mr. Emerson would be subject to federal criminal prosecution merely for
possessing a firearm while being subject to the order.
As stated above, Emerson was indicted for
possession of a firearm while being under a restraining order, in violation of
18 U.S.C.§ 922(g)(8) ("the Act"). This statute states
18 U.S.C. § 922(g)(8).
Emerson argues that 18 U.S.C. § 922(g)(8) is an
unconstitutional exercise of congressional power under the Commerce Clause and
the Second, Fifth, and Tenth Amendments to the United States Constitution. The
Court will address these arguments seriatim.
A. Commerce Clause
Emerson first argues that 18 U.S.C.
§ 922(g)(8) is an unconstitutional exercise of congressional power under
the Commerce Clause of the United States Constitution. U.S. Const. art. I, § 8, cl. 3. Pursuant to the Supreme
Court's holding in United States v. Lopez, 514 U.S. 549,
115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Emerson argues that the Act is
unconstitutional (p.600)because it does not
regulate commercial activity.
However, the Fifth Circuit Court of Appeals has examined the
validity of 18 U.S.C. § 922(g)(8) under a Commerce Clause
challenge and has held that the Act is constitutional. United
States v. Pierson, 139 F.3d 501 (5th Cir.1998). Accordingly, Emerson
cannot sustain a Motion to Dismiss under a Commerce Clause challenge.
B. Second Amendment
Emerson claims that 18 U.S.C. §
922(g)(8) violates his rights under the Second Amendment to the United
States Constitution. The Second Amendment states that:
A well regulated Militia, being necessary to
the security of a free State, the right of the people to keep and bear Arms,
shall not be infringed.
Only if the Second Amendment guarantees Emerson a personal right to
bear arms can he claim a constitutional violation. Whether the Second Amendment
recognizes an individual right to keep and bear arms is an issue of first
impression within the Fifth Circuit. Emerson claims that he has a personal right
to bear arms which the Act infringes, while at oral argument on the Motion to
Dismiss, the Government claimed it is "well settled" that the Second Amendment
creates a right held by the States and does not protect an individual right to
1. Second Amendment Schools of Thought
Two main schools of thought have developed on
the issue of whether the Second Amendment recognizes individual or collective
rights. These schools of thought are referred to as the "states' rights," or
"collective rights," school and the "individual rights" school. The former group
cites the opening phrase of the amendment, along with subsequent case law, as
authority for the idea that the right only allows states to establish and
maintain militias, and in no way creates or protects an individual right to own
arms. David E. Johnson, Note, Taking a Second Look at the Second
Amendment and Modern Gun Control Laws, 86 Ky.L.J.
197, 198 (1997-98) (citing Andrew D. Herz, Gun Crazy: Constitutional
False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U. L.Rev. 57 (1995)). Due to changes in the
political climate over the last two centuries and the rise of National Guard
organizations among the states, states' rights theorists argue that the Second
Amendment is an anachronism, and that there is no longer a need to protect any
right to private gun ownership.
The individual rights theorists, supporting what has become known
in the academic literature as the "Standard Model," argue that the amendment
protects an individual right inherent in the concept of ordered liberty, and
resist any attempt to circumscribe such a right. Id. (citing
Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62
Tenn. L.Rev. 461, 464-88 (1995);
Robert Dowlut, The Right to Keep and Bear Arms: A Right to Self-Defense
Against Criminals and Despots, 8 Stan. L. & Pol'y
2. Textual Analysis
A textual analysis of the Second Amendment
supports an individual right to bear arms. A distinguishing characteristic of
the Second Amendment is the inclusion of an opening clause or preamble, which
sets out its purpose. No similar clause is found in any other amendment.
Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 644 (1989). While states'
rights theorists seize upon this first clause to the exclusion of the second,
both clauses should be read in pari materia, to give effect and harmonize
both clauses, (p.601)rather than construe them
as being mutually exclusive.
The amendment reads "[a] well regulated Militia, being necessary
to the security of a free State, the right of the people to keep and bear Arms,
shall not be infringed." U.S. Const.
amend. II. Within the amendment are two distinct clauses, the first
subordinate and the second independent. If the amendment consisted solely of its
independent clause, "the right of the people to keep and bear Arms, shall not be
infringed," then there would be no question whether the right is individual in
nature. David E. Johnson, Note, Taking a Second Look at the Second
Amendment and Modern Gun Control Laws, 86 Ky. L.J.
197, 200 (1997-98).
Collective rights theorists argue that addition of the
subordinate clause qualifies the rest of the amendment by placing a limitation
on the people's right to bear arms. Id. However, if the amendment truly
meant what collective rights advocates propose, then the text would read "[a]
well regulated Militia, being necessary to the security of a free State, the
right of the States to keep and bear Arms, shall not be infringed."
However, that is not what the framers of the amendment drafted. The plain
language of the amendment, without attenuate inferences therefrom, shows that
the function of the subordinate clause was not to qualify the right, but instead
to show why it must be protected. Id. The right exists independent of the
existence of the militia. If this right were not protected, the existence of the
militia, and consequently the security of the state, would be jeopardized.
Id. at 201.
The Supreme Court recently interpreted the text of the Second
Amendment and noted that the phrase "the people" in the Second Amendment has the
same meaning in both the Preamble to the Constitution and in the First, Fourth,
Fifth, and Ninth Amendments. United States v.
Verdugo-Urquidez, 494 U.S. 259, 265, 110 S.Ct. 1056, 108
L.Ed.2d 222 (1990). The Court held that the phrase "the people" "seems to
have been a term of art employed in select parts of the Constitution."
The Second Amendment protects "the right of
the people to keep and bear Arms," and the Ninth and Tenth Amendments provide
that certain rights and powers are retained by and reserved to "the
* * * * * *
While this textual exegesis is by no means
conclusive, it suggests that "the people" protected by the Fourth Amendment,
and by the First and Second Amendments, ... refers to a class of persons who
are part of a national community or who have otherwise developed sufficient
connection with this country to be considered part of that community.
See United States ex rel. Turner v. Williams, 194
U.S. 279, 292, 24 S.Ct. 719, 48 L.Ed. 979 (1904).
The Court has also held that given their
contemporaneous proposal and passage, the amendments of the Bill of Rights
should be read in pari materia, and amendments which contain similar
language should be construed similarly. Patton v. United
States, 281 U.S. 276, 298, 50 S.Ct. 253, 74
L.Ed. 854 (1930), cited by David Harmer, Securing a Free State:
Why the Second Amendment Matters, 1998 BYU L.Rev.
55, 61 (1998). The Court's construction of "the people" as used in the
Second Amendment supports a holding that the right to keep and bear arms is a
personal right retained by the people, as opposed to a collective right held by
the States. Thus, a textual analysis of the Second Amendment clearly declares a
substantive right to bear arms recognized in the people of the United
3. Historical Analysis
"[T]here is a long tradition of widespread
lawful gun ownership by private individuals in this country." Staples v. United States, 511 U.S. 600, 610, 114 S.Ct. (p.602)1793, 128 L.Ed.2d 608 (1994). A
historical examination of the right to bear arms, from English antecedents to
the drafting of the Second Amendment, bears proof that the right to bear arms
has consistently been, and should still be, construed as an individual
a. English History
A review of English history explains the
founders' intent in drafting the Second Amendment. As long ago as 690 A.D.,
Englishmen were required to possess arms and to serve in the military.
David T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence
of the Second Amendment, 9 Harv. J.L. & Pub.
Pol'y 559, 562 (1986) (citing 1
John J. Bagley & Peter B.Rowley, A Documentary History of
England 1066-1540, at 152 (1965)). This obligation
continued for centuries, requiring nobility, and later commoners, to keep arms
and participate in the militia. Id. at 563-65. The obligation
to keep arms was not simply to provide military service in the king's army;
English citizens were also required to provide local police services, such as
pursuing criminals and guarding their villages. Clayton
E. Cramer, For the Defense of Themselves and the State: The Original Intent and
Judicial Interpretation of the Right to Keep and Bear Arms 24-25
(1994); Joyce Lee Malcolm, To Keep and Bear Arms:
The Origins of an Anglo-American Right 2 (1994).
By the middle of the seventeenth century, however, the
sovereign jeopardized the individual right to bear arms. Charles II, and later
James II, began to disarm many of their Protestant subjects. Hardy,
supra, at 574-79. James II was an
unpopular king whose policies stirred great resentment among both the political
and religious communities of England. David E. Murley, Private
Enforcement of the Social Contract: Deshaney and the Second Amendment Right to
Own Firearms, 36 Duq. L.Rev. 15, 19 (1997).
Eventually, James II fled England during what was later termed the Glorious
Revolution. Hardy, supra, at 579. In the aftermath
of the Glorious Revolution, Parliament passed the English Bill of Rights in
1689, codifying the individual right to bear arms. Id. at 580. The Bill of Rights
provided that "the subjects which are Protestant may have arms for their defense
suitable to their conditions and as allowed by law." Id. at 581.
b. The Colonial Right To Bear Arms
The American colonists exercised their right
to bear arms under the English Bill of Rights. Indeed, the English government's
success in luring Englishmen to America was due in part to pledges that the
immigrants and their children would continue to possess "all the rights of
natural subjects, as if born and abiding in England." Malcolm, supra, at 138. As in England, the
colonial militia played primarily a defensive role, with armies of volunteers
organized whenever a campaign was necessary. Id. at 139.
Statutes in effect bore evidence of an individual right to bear arms during
colonial times. For example, a 1640 Virginia statute required "all masters of
families" to furnish themselves and "all those of their families which shall be
capable of arms ... with arms both offensive and defensive." Id.
(citing The Old Dominion in the Seventeenth Century: A
Documentary History of Virginia, 1606-1689, at 172 (Warren M. Billings
ed., 1975)). A 1631 Virginia law required "all men that are
fittinge to beare armes, shall bring their pieces to church ... for drill and
target practice." Hardy, supra, at 588 (quoting 1 William W. Hening, The Statutes at Large: Being a Collection of all
the Laws of Virginia From the First Session of the Legislature in the Year
1619, at 173-74 (reprint. 1969) (1823)). These laws served
the twofold purpose of providing individual self-defense while giving England a
reserve force available in time of war. Murley, supra, at
Following the French and Indian War, England increased taxes
and stationed a large army in the colonies. On April 3, 1769, the Boston
Evening Post announced that colonial authorities urged the citizenry to take
up arms. In reply to the claim that this request was unlawful, the newspaper
It is certainly beyond human art and
sophistry, to prove the British subjects, to whom the privilege of
possessing arms as expressly recognized by the Bill of Rights, and who live in
a province where the law requires them to be equipped with arms, are
guilty of an illegal act, in calling upon one another to be provided
with them, as the law directs.
Hardy, supra, at 589-90 (quoting Oliver M. Dickerson, Boston Under Military Rule 61
(1936)). Shortly after the "Boston Tea Party," British soldiers, led by
General Gage, attempted to disarm the colonists. Malcolm, supra, at 144. The British Parliament
banned all exports of muskets and ammunition to the colonies and began seizing
the colonists' weapons and ammunition. Id. The British efforts to disarm
the colonists hardened American resistance. At that point, the colonists began
to form the "minutemen," a nationwide select militia organization. Hardy,
supra at 890 [ed. 590]. In February 1775,
a colonial militia prevented the British from seizing weapons at an armory in
Salem, Massachusetts. Two months later, the colonists defeated British troops at
Concord. Id. at 591. Distinguished
colonial leaders, such as George Washington and Samuel Adams, strongly
influenced the organization of these local militias. Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a
Constitutional Right 60-61 (1984).
The "militia" which won the Revolutionary War consisted of all
who were treated as full citizens of the community. George Mason stated, "Who
are the militia? They consist now of the whole people." Sanford Levinson,
The Embarrassing Second Amendment, 99 Yale L.J.
637, 647 (1989) (citing statement of
George Mason (June 14, 1788), in 3 Jonathan
Elliott, Debates in the General State Conventions 425 (3d
ed.1937)). Similarly, the Federal Farmer referred to a "militia,
when properly formed, [as] in fact the people themselves." Id.
(quoting Richard Henry Lee, Observations Leading to a
Fair Examination of the System of Government Proposed by the Late Convention:
Letters from the Federal Farmer to the Republican 123 (Walter H.Bennett
The individual right to bear arms, a right recognized in both
England and the colonies, was a crucial factor in the colonists' victory over
the British army in the Revolutionary War. Without that individual right, the
colonists never could have won the Revolutionary War. After declaring
independence from England and establishing a new government through the
Constitution, the American founders sought to codify the individual right to
bear arms, as did their forebears one hundred years earlier in the English Bill
c. The Ratification Debates
A foundation of American political thought
during the Revolutionary period was the well justified concern about political
corruption and governmental tyranny. Even the federalists, fending off their
opponents who accused them of creating an oppressive regime, were careful to
acknowledge the risks of tyranny. Against that backdrop, the framers saw the
personal right to bear arms as a potential check against tyranny. Theodore
Sedgwick of Massachusetts expressed this sentiment by declaring that it is "a
chimerical idea to suppose that a country like this could ever be enslaved ...
Is it possible ... that an army could be raised for the purpose of enslaving
themselves or their brethren? or, if raised whether they could subdue a nation
of freemen, who know how to prize liberty and who have arms in their hands?"
Malcolm, supra at 157 (citing 2 Jonathan Elliot, The Debates in the Several (p.604)State Conventions on the Adoption of the Federal
Constitution 97 (2d ed. 1863)). Noah Webster similarly
Before a standing army can rule the people
must be disarmed; as they are in almost every kingdom in Europe. The supreme
power in America cannot enforce unjust laws by the sword; because the whole
body of the people are armed, and constitute a force superior to any band of
regular troops that can be, on any pretence, raised in the United
Id. (citing Noah Webster, An Examination Into the Leading Principles of the
Federal Constitution (1787), reprinted in Pamphlets on the Constitution of the United States, Published During
Its Discussion by the People, 1787-1788, at 56 (Paul L. Ford, ed. 1971)
(1888)). Richard Lee Henry's view that a well regulated militia
was the entire armed populace rather than a select body of men was reiterated by
proponents to a bill of rights. As "M.T. Cicero" wrote to "The Citizens of
Whenever, therefore, the profession of arms
becomes a distinct order in the state ... the end of the social compact is
No free government was ever founded, or
ever preserved its liberty, without uniting the characters of the citizen and
the soldier in those destined for the defence of the state.... such are a well
regulated militia, composed of the freeholders, citizen and husbandman, who
take up arms to preserve their property, as individuals, and their rights as
supra at 72 (citing State Gazette
(Charleston), Sept. 8, 1788).
George Mason argued the importance of the militia and right to
bear arms by reminding his compatriots of England's efforts "to disarm the
people; that it was the best and most effectual way, to enslave them ... by
totally disusing and neglecting the militia." Id. at 74 (citing
3 Jonathan Elliot, The Debates in the Several State
Conventions on the Adoption of the Federal Constitution 380 (2d ed.
1863)). He also clarified that under prevailing practice the
militia included all people, rich and poor. "Who are the militia? They consist
now of the whole people, except a few public officers." Id. (citing
3 Elliot at 425-26). Because all
were members of the militia, all enjoyed the right to individually bear arms to
The framers thought the personal right to bear arms to be a
paramount right by which other rights could be protected. Therefore, writing
after the ratification of the Constitution, but before the election of the first
Congress, James Monroe included "the right to keep and bear arms" in a list of
basic "human rights" which he proposed to be added to the Constitution.
Halbrook, supra at 223 n.145 (citing
James Monroe Papers, New York Public Library (Miscellaneous Papers of
The framers also saw an armed populace as the safeguard of
religious liberty. Zachariah Johnson told the Virginia convention their
liberties would be safe because
the people are not to be disarmed of their
weapons. They are left in full possession of them. The government is
administered by the representatives of the people, voluntarily and freely
chosen. Under these circumstances should anyone attempt to establish their own
system [of religion], in prejudice of the rest, they would be universally
detested and opposed, and easily frustrated. This is the principle which
secures religious liberty most firmly. The government will depend on the
assistance of the people in the day of distress.
supra at 157 ,(citing 3 Elliot
Patrick Henry, also in the Virginia convention, eloquently
argued for the dual rights to arms and resistance to oppression: "Guard with
jealous attention the public liberty. Suspect everyone who approaches that
jewel. Unfortunately, nothing will preserve it but downright force. Whenever you
give up that force, you are (p.605)ruined."
Halbrook, supra at 73 (citing 3 Elliot at 45). Thus, the federalists agreed with
Blackstone that an armed populace was the ultimate check on tyranny. Malcolm, supra at 157.
While both Monroe and Adams supported ratification of the
Constitution, its most influential framer was James Madison. In The Federalist
No. 46, he confidently contrasted the federal government of the United States to
the European despotisms which he contemptuously described as "afraid to trust
the people with arms." He assured his fellow citizens that they need never fear
their government because of "the advantage of being armed." Don B. Kates,
Jr., Handgun Prohibition and The Original Meaning of The Second
Amendment, 82 Mich. L.Rev. 204, 228 (1983) (quoting The Federalist No. 46, at 371 (James Madison) (John. C.
Hamilton ed., 1864)). Many years later, Madison restated the sentiments
of The Federalist No. 46 by declaring: "[A] government resting on a minority is
an aristocracy, not a Republic, and could not be safe with a numerical and
physical force against it, without a standing army, an enslaved press, and a
disarmed populace." Id. (quoting Ralph L.
Ketcham, James Madison: A Biography 64, 640 (1971)).
Although on the other side of the ratification debate,
Anti-Federalist Patrick Henry was unequivocal on the individual right to bear
arms. During the Virginia ratification convention, he objected to the
Constitution's inclusion of clauses specifically authorizing a standing army and
giving the federal government control of the militia. He also objected to the
omission of a clause forbidding disarmament of the individual citizen: "The
great object is that every man be armed.... [e]veryone who is able may have a
gun." Id. at 229
(citing 3 J. Elliott, supra, at
By January of 1788, Delaware, Pennsylvania, New Jersey,
Georgia and Connecticut ratified the Constitution without insisting upon
amendments. Several specific amendments were proposed, but were not adopted at
the time the Constitution was ratified. The Pennsylvania convention, for
example, debated fifteen amendments, one of which concerned the right of the
people to be armed, another with the militia. The amendment on the right to bear
That the people have a right to bear arms
for the defence of themselves and their own State, or the United States, or
for the purpose of killing game; and no law shall be passed for disarming the
people or any of them, unless for crimes committed, or real danger of public
injury from individuals; and as standing armies in time of peace are dangerous
to liberty, they ought not to be kept up; and that the military shall be kept
under strict subordination to and be governed by the civil
supra at 158 (citing Pennsylvania and the Federal
Constitution, 1787-1788, at 422).
The Massachusetts convention also ratified the Constitution
with an attached list of proposed amendments. Id. In the end, the
ratification convention was so evenly divided between those for and against the
Constitution that the federalists agreed to amendments to assure ratification.
Id. Samuel Adams proposed that the Constitution
[B]e never construed to authorize Congress
to infringe the just liberty of the press, or the rights of conscience; or to
prevent the people of the United States, who are peaceable citizens, from
keeping their own arms; or to raise standing armies, unless when necessary for
the defence of the United States, or of some one or more of them; or to
prevent the people from petitioning, in a peaceable and orderly manner, the
federal legislature, for a redress of their grievances: or to subject the
people to unreasonable searches and seizures.
Id. (citing Debates and Proceedings in the Convention of the Commonwealth of
Massachusetts, Held in the Year 1788, at 198-99 (p.606)(Bradford Pierce and Charles Hale, ed.,
Other states which had not yet ratified the Constitution
followed the Maryland convention's practice of ratifying the Constitution while
submitting proposed amendments. The New Hampshire convention, for example,
adopted the nine Massachusetts amendments and added three others: one to limit
standing armies, a second to ensure an individual right to bear arms, and a
third to protect freedom of conscience. Id. The proposed amendment on
freedom to bear arms read: "Congress shall never disarm any Citizen unless such
as are or have been in Actual Rebellion." Id. at 158-59 (citing
2 Documentary History of the Constitution of the United
States, 1787-1870, at 143 (1894)).
d. Drafting the Second Amendment
When the first Congress convened on March 4,
1789, James Madison, who had previously advocated passage of the Constitution
without amendments, now pressed his colleagues to act on a bill of rights.
Malcolm, supra at 159. When his
initial efforts failed to produce any response, he drafted his own version of a
bill of rights and presented them to members of Congress on June 8 of that year.
Id. He explained to Jefferson that he deliberately drafted the amendments
to be unexceptional and therefore likely to win approval. Id.
(citing Ronald Rutland, The Birth of the Bill of
Rights 209 (1991)). His version of what would later be the
second amendment read:
The right of the people to keep and bear
arms shall not be infringed; a well armed, and well regulated militia being
the best security of a free country: but no person religiously scrupulous of
bearing arms, shall be compelled to render military service in
supra at 159.
That Madison envisioned a personal right to bear arms, rather
than merely a right for the states to organize militias, is evident from his
desired placement of the right in the Constitution. Madison's original plan was
to designate the amendments as inserts between specific sections of the existing
Constitution, rather than as separate amendments added to the end of the
document. Hardy, supra at 609 (citing 1 Annals Of Congress 707-08 (Joseph Gales ed.,
1789)). Madison did not designate the right to keep and bear arms
as a limitation of the militia clause of Section 8 of Article I. Rather, he
placed it as part of a group of provisions (with freedom of speech and the
press) to be inserted in "Article 1st, Section 9, between Clauses 3 and 4."
Id. (quoting 5 Documentary History of the
Constitution of the United States of America 186-87
(1905)). Such a designation would have placed this right
immediately following the few individual rights protected in the original
Constitution, dealing with the suspension of bills of attainder, habeas corpus,
and ex post facto laws. Thus Madison aligned the right to bear arms along with
the other individual rights of freedom of religion and the press, rather than
with congressional power to regulate the militia. Id. This suggested
placement of the Second Amendment reflected recognition of an individual right,
rather than a right dependent upon the existence of the militia.
At that point, the Senate took up the Bill of Rights.
Unfortunately, Senate debate on the issue was held in secret, and therefore no
record exists of that body's deliberations. Cramer, supra at 58 (citing Helen Veit et al., Creating the Bill of Rights: The Documentary
Record From the First Federal Congress xix (1991)). The
Senate form of the second amendment now described the militia not as "the best
security" of a free state, but as "necessary to the security" of a free state,
an even stronger endorsement than Madison's original description. Malcolm, supra at 161. The Senators also omitted
the phrase describing the militia as "composed of the body of the people."
Elbridge Gerry's (p.607)fear that future
Congresses might expand on the religious exemption clause evidently convinced
the Senate to eliminate that clause as well. Id. Even more important,
however, was the Senate's refusal of a motion to add "for the common defense"
after the phrase "to keep and bear arms." Id. (citing Halbrook, supra at 81, n.167). Thus the American
Bill of Rights, like the English Bill of Rights, recognized the individual's
right to have weapons for his own defense, rather than for collective defense.
Id. In this form, Congress approved the Second Amendment and sent the
Bill of Rights to the state legislatures for ratification. Id.
In retrospect, the framers designed the Second Amendment to
guarantee an individual's right to arms for self-defense. Such an individual
right was the legacy of the English Bill of Rights. American colonial practice,
the constitutional ratification debates, and state proposals over the amendment
all bear this out. Id. at 162. The American Second Amendment
also expanded upon the English Bill of Rights' protection; while English law
allowed weapons "suitable to a person's condition" "as allowed by law," the
American right forbade any "infringement" upon the right of the people to keep
and bear arms. Id.
In his influential Commentaries on the Constitution,
Joseph Story emphasized the importance of the Second Amendment. He described the
militia as the "natural defence of a free country" not only "against sudden
foreign invasions" and "domestic insurrections," but also against "domestic
usurpations of power by rulers." He went on to state that "[t]he right of the
citizens to keep and bear arms has justly been considered as the palladium of
the liberties of a republic; since it offers a strong moral check against the
usurpation and arbitrary power of rulers; and will generally, even if these are
successful in the first instance, enable the people to resist and triumph over
them." 3 J. Story, Commentaries § 1890, p. 746 (1833).
4. Structural Analysis
The structure of the Second Amendment within
the Bill of Rights proves that the right to bear arms is an individual right,
rather than a collective one. The collective rights' idea that the Second
Amendment can only be viewed in terms of state or federal power "ignores the
implication that might be drawn from the Second, Ninth, and Tenth Amendments:
the citizenry itself can be viewed as an important third component of republican
governance as far as it stands ready to defend republican liberty against the
depredations of the other two structures, however futile that might appear as a
practical matter." Sanford Levinson, The Embarrassing Second
Amendment, 99 Yale L.J. 637, 651 (1989).
Furthermore, the very inclusion of the right to keep and bear
arms in the Bill of Rights shows that the framers of the Constitution considered
it an individual right. "After all, the Bill of Rights is not a bill of states'
rights, but the bill of rights retained by the people." David Harmer,
Securing a Free State: Why The Second Amendment Matters, 1998 BYU L.Rev. 55, 60 (1998). Of the first ten amendments
to the Constitution, only the Tenth concerns itself with the rights of the
states, and refers to such rights in addition to, not instead of, individual
rights. Id. Thus the structure of the Second Amendment, viewed in the
context of the entire Bill of Rights, evinces an intent to recognize an
individual right retained by the people.
5. Judicial Interpretations
The Court notes that several other federal
courts have held that the Second Amendment does not establish an individual
right to keep and bear arms, but rather a "collective" right, or a right held by
the states. See, e.g., Hickman v. Block, 81 F.3d 98, 100-01 (9th
Cir.1996) (holding that plaintiff lacked standing to sue for denial of
concealed weapons permit, because Second Amendment does not protect (p.608)possession of weapon by private citizen; right
to bear arms is held by the states); Love v. Pepersack, 47
F.3d 120, 124 (4th
Cir.1995) (holding that Second Amendment does not confer absolute
individual right); United States v. Warin, 530 F.2d 103, 106-07 (6th
Cir.1976) (holding that Second Amendment guarantees a collective rather
than an individual right; fact that an individual citizen, like all others, may
enroll in state militia does not confer right to possess submachine gun); Cases v. United States, 131 F.2d 916, 920-23 (1st
Cir.1942) (holding that federal government may limit the keeping and
bearing of arms by a single individual); Hamilton v.
Accu-Tek, 935 F.Supp. 1307, 1318 (E.D.N.Y.1996) (holding that Second
Amendment right to bear arms establishes a collective rather than an individual
or private right).
However, the only modern Second Amendment case from the Supreme
Court is United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83
L.Ed. 1206 (1939). Jack Miller was charged with moving a sawed-off
shotgun in interstate commerce in violation of the National Firearms Act of
1934. Among other things, Miller had not registered the firearm, as required by
the Act. The court below dismissed the charge, accepting Miller's argument that
the Act violated the Second Amendment.
The Supreme Court reversed unanimously, with Justice McReynolds
writing the opinion. Interestingly enough, he emphasized that there was no
evidence showing that a sawed-off shotgun "at this time has some reasonable
relationship to the preservation or efficiency of a well regulated militia."
Id. at 178, 59 S.Ct.
816. And "[c]ertainly it is not within judicial notice that this weapon
is any part of the ordinary military equipment or that its use could contribute
to the common defense." Id. at 178, 59 S.Ct.
816 (citation omitted). Thus, Miller might have had a tenable argument
had he been able to show that he was keeping or bearing a weapon that clearly
had a potential military use. Justice McReynolds went on to describe the purpose
of the Second Amendment as "assur[ing] the continuation and render[ing] possible
the effectiveness of [the Militia]." Id. at 178, 59 S.Ct.
816. He contrasted the Militia with troops of a standing army, which the
Constitution indeed forbade the states to keep without the explicit consent of
Congress. "The sentiment of the time strongly disfavored standing armies; the
common view was that adequate defense of country and laws could be secured
through the Militia--civilians primarily, soldiers on occasion." Id. at 179, 59 S.Ct.
816. McReynolds noted further that "the debates in the Convention, the
history and legislation of Colonies and States, and the writings of approved
commentators [all] [s]how plainly enough that the Militia comprised all males
physically capable of acting in concert for the common defense." Id.
It is difficult to interpret Miller as rendering the
Second Amendment meaningless as a control on Congress. Ironically, one can read
Miller as supporting some of the most extreme anti-gun control arguments;
for example, that the individual citizen has a right to keep and bear bazookas,
rocket launchers, and other armaments that are clearly used for modern warfare,
including, of course, assault weapons. Under Miller, arguments about the
constitutional legitimacy of a prohibition by Congress of private ownership of
handguns or, what is much more likely, assault rifles, thus might turn on the
usefulness of such guns in military settings. Sanford Levinson, The
Embarrassing Second Amendment, 99 Yale L.J. 637, 654-55 (1989).
Miller did not answer the crucial question of whether the
Second Amendment embodies an individual or collective right to bear arms.
Although its holding has been used to justify many previous lower federal court
rulings circumscribing Second Amendment rights, the Court in Miller
simply chose a very narrow way to rule on the issue of gun possession under the
Second Amendment, and left for another (p.609)day further questions of Second Amendment construction.
See Printz v. United States, 521 U.S. 898, 937-38
& n.1, 2, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) (Thomas, J.,
This Court has not had recent occasion to
consider the nature of the substantive right safeguarded by the Second
Amendment. If, however, the Second Amendment is read to confer a
personal right to "keep and bear arms," a colorable argument exists
that the Federal Government's regulatory scheme, at least as it pertains to
the purely intrastate sale or possession of firearms, runs afoul of that
6. Prudential Concerns
Some scholars have argued that even if the
original intent of the Second Amendment was to provide an individual right to
bear arms, modern-day prudential concerns about social costs outweigh such
original intent and should govern current review of the amendment. However,
there is a problem with such reasoning. If one accepts the plausibility of any
of the arguments on behalf of a strong reading of the Second Amendment, but,
nevertheless, rejects them in the name of social prudence and the present-day
consequences of an individual right to bear arms, why do we not apply such
consequentialist criteria to each and every part of the Bill of Rights?
Levinson, supra at 658.
As Professor Ronald Dworkin has argued, what it means to take
rights seriously is that one will honor them even when there is significant
social cost in doing so. Protecting freedom of speech, the rights of criminal
defendants, or any other part of the Bill of Rights has significant
costs--criminals going free, oppressed groups having to hear viciously racist
speech and so on--consequences which we take for granted in defending the Bill
of Rights. This mind-set changes, however, when the Second Amendment is
concerned. "Cost-benefit" analysis, rightly or wrongly, has become viewed as a
"conservative" weapon to attack liberal rights. Yet the tables are strikingly
turned when the Second Amendment comes into play. Here "conservatives" argue in
effect that social costs are irrelevant and "liberals" argue for a notion (p.610)of the "living Constitution" and "changed
circumstances" that would have the practical consequence of erasing the Second
Amendment from the Constitution. Levinson, supra at 657-58.
Other commentators, including Justice Scalia, have argued that
even if there would be "few tears shed if and when the Second Amendment is held
to guarantee nothing more than the state National Guard, this would simply show
that the Founders were right when they feared that some future generation might
wish to abandon liberties that they considered essential, and so sought to
protect those liberties in a Bill of Rights. We may tolerate the abridgement of
property rights and the elimination of a right to bear arms; but we should not
pretend that these are not reductions of rights." Sanford Levinson, Is
the Second Amendment Finally Becoming Recognized As Part of the Constitution?
Voices from the Courts, 1998 BYU L.Rev. 127, 132
(1998) (quoting Antonin Scalia, Common-Law Courts in a Civil-Law
System: The Role of United States Federal Courts in Interpreting the
Constitution and Laws, in A Matter of Interpretation: Federal Courts and the
Law 3, 43 (Amy Gutmann, ed.1997)).
In response to arguments propounded by Professor Laurence Tribe
and others describing the Second Amendment as being simply "seemingly
state-militia-based" rather than "supporting broad principles" of private
ownership of guns, Justice Scalia pointed out that it is incorrect to assume
that the word "militia" refers only to "'a select group of citizen-soldiers ...
rather than', as the Virginia Bill of Rights of June 1776 defined it, 'the body
of the people, trained to arms.'" Antonin Scalia, Response, in A Matter
of Interpretation, supra at 129, 136 n.13 (quoting Joyce Lee Malcolm, To Keep and Bear Arms 136, 148
Justice Scalia also notes that "[t]his was also the conception of
'militia' entertained by James Madison," citing The Federalist No.
46 for support. Id. "It would also be strange," he, goes on to
say, "to find in the midst of a catalog of the rights of individuals a provision
securing to the states the right to maintain a designated 'Militia.'
Dispassionate scholarship suggests quite strongly that the right of the people
to keep and bear arms meant just that." Id. at 137 n.13 (citing
Joyce Lee Malcolm, To Keep and Bear Arms
(1994); William Van Alstyne, The Second Amendment and the
Personal Right to Arms, 43 Duke L.J. 1236 (1994)).
Justice Scalia concludes by stating that "[i]t is very likely
that modern Americans no longer look contemptuously, as Madison did, upon the
governments of Europe that 'are afraid to trust the people with arms,' The
Federalist No. 46; and the ... Constitution that Professor Tribe espouses
will probably give effect to that new sentiment by effectively eliminating the
Second Amendment. But there is no need to deceive ourselves as to what the
original Second Amendment said and meant. Of course, properly understood, it is
no limitation upon arms control by the states." Id.
Thus, concerns about the social costs of enforcing the Second
Amendment must be outweighed by considering the lengths to which the federal
courts have gone to uphold other rights in the Constitution. The rights of the
Second Amendment should be as zealously guarded as the other individual
liberties enshrined in the Bill of Rights.
7. Constitutionality of 18 U.S.C. § 922(g)(8)
18 U.S.C. § 922(g)(8) is
unconstitutional because it allows a state court divorce proceeding, without
particularized findings of the threat of future violence, to automatically
deprive a citizen of his Second Amendment rights. The statute allows, but does
not require, that the restraining order include a finding that the person under
the order represents a credible threat to the physical safety of the intimate
partner or child. 18 U.S.C. § 922(g)(8)(C)(i). If the
statute only criminalized (p.611)gun possession
based upon court orders with particularized findings of the likelihood of
violence, then the statute would not be so offensive, because there would be a
reasonable nexus between gun possession and the threat of violence. However, the
statute is infirm because it allows one to be subject to federal felony
prosecution if the order merely "prohibits the use, attempted use, or threatened
use of physical force against [an] intimate partner." 18 U.S.C. §
However, prosecution based on such an order would be
tautological, for § 922(g)(8)(C)(i) merely repeats in
different wording the requirement in subsection (B) that the order "restrains
such person from harassing, stalking, or threatening an intimate partner of such
person or child of such intimate partner or person, or engaging in other conduct
that would place an intimate partner in reasonable fear of bodily injury to the
partner or child." § 922(g)(8)(B). All that is required for
prosecution under the Act is a boilerplate order with no particularized
findings. Thus, the statute has no real safeguards against an arbitrary
abridgement of Second Amendment rights. Therefore, by criminalizing protected
Second Amendment activity based upon a civil state court order with no
particularized findings, the statute is over-broad and in direct violation of an
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). Under this statute, a person can lose his
Second Amendment rights not because he has committed some wrong in the past, or
because a judge finds he may commit some crime in the future, but merely because
he is in a divorce proceeding. Although he may not be a criminal at all, he is
stripped of his right to bear arms as much as a convicted felon. Second
Amendment rights should not be so easily abridged.
It is absurd that a boilerplate state court divorce order can
collaterally and automatically extinguish a law-abiding 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. That such a
routine civil order has such extensive consequences totally attenuated from
divorce proceedings makes the statute unconstitutional. There must be a limit to
government regulation on lawful firearm possession. This statute exceeds that
limit, and therefore it is unconstitutional.
C. Fifth Amendment
Emerson also contends that 18
U.S.C. § 922(g)(8) violates his Fifth Amendment due process rights. He
argues that the perfunctory, generic temporary orders issued in his divorce
proceedings expose him to federal criminal liability for engaging in otherwise
Firearm possession is a valuable liberty interest imbedded in the
Second Amendment to the United States Constitution. "[T]here is a long tradition
of widespread lawful gun ownership by private individuals in this country."
Staples v. United States, 511 U.S. 600, 610, 114 S.Ct.
1793, 128 L.Ed.2d 608 (1994). Thus, Emerson has a protected liberty
interest in firearm possession under the Fifth Amendment.
"It is wrong to convict a person of a crime if he had no reason to
believe that the act for which he was convicted was a crime, or even
that it was wrongful. This is one of the bedrock principles of American law. It
lies at the heart of any civilized (p.612)system of law." United States v.
Wilson, 159 F.3d 280, 293 (7th Cir.1998) (Posner, C.J., dissenting).
It offends both substantive and procedural due process for Emerson to be
convicted of a crime he did not know existed. Because 18 U.S.C. §
922(g)(8) is such an obscure criminal provision, it is unfair to hold him
accountable for his otherwise lawful actions.
The conduct this statute criminalizes is malum prohibitum,
not malum in se. In other words, there was nothing inherently evil about
Emerson possessing a firearm while being under a domestic restraining order. His
conduct was unlawful merely because the statute mandated that it be. Wilson, 159 F.3d at 294 (Posner, C.J., dissenting). Section 922(g)(8) is one of the most obscure of criminal
provisions. Here, Emerson owned a firearm, and knew or should have known that
if, for example, he was convicted of a felony, he would have to relinquish
ownership of his firearm. If by chance he did not know this, the sentencing
judge or the probation officer would have informed him of the law. Nevertheless,
when Emerson was made subject to the restraining order telling him to not harass
his wife, Emerson could not have known of the requirement to relinquish his gun
unless the presiding judge issuing the order told him. In this case, the state
district judge did not tell Emerson about the requirement. Emerson's attorney
did not tell him either, because Emerson did not have a lawyer. The fact that
the restraining order contained no reference to guns may have led Emerson to
believe that since he complied with the order, he could carry on as before.
Id. at 294-95.
Chief Judge Posner of the Seventh Circuit aptly explains the
dilemma between the maxim "ignorance of the law is no excuse" and the inherent
unreasonableness of criminal prosecutions involving obscure violations of
We want people to familiarize themselves with
the laws bearing on their activities. But a reasonable opportunity doesn't
mean being able to go to a local law library and read Title 18. It would be
preposterous to suppose that someone from [the defendant's] milieu is able to
take advantage of such an opportunity. If none of the conditions that make it
reasonable to dispense with proof of knowledge of the law is present, then to
intone "ignorance of the law is, no defense" is to condone a violation of
fundamental principles for the sake of a modest economy in the administration
of criminal justice.
Id. at 295.
Section 922(g)(8) is also one of those "highly
technical statutes that present the danger of ensnaring individuals engaged in
apparently innocent conduct," of which the Supreme Court spoke in Bryan v. United States, 524 U.S. 14, 118 S.Ct. 1939, 1946-47, 141
L.Ed.2d 197 (1998).
Emerson's case differs from Bryan because the statute in
this case is easy to understand, but it is hard to discover, which in the end
compels the same result as demonstrated by Lambert v.
California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957).
In Lambert, a Los Angeles ordinance made it a crime for a
convicted felon to remain in the city for more than five days without
registering. Mrs. Lambert, a felon, failed to register. The Supreme Court held
that the ordinance violated due process when applied to a person who had no
notice of a duty to report. Id. at 229, 78 S.Ct.
240. The Court found that, while a legislative body may eliminate the
mens rea from the elements of an offense, the constitutional requirement
of due process of law places limits on this practice. Id.
at 228, 78 S.Ct. 240. "[T]he existence of a mens rea is the rule
of, rather than the exception to, the principles of Anglo-American criminal
jurisprudence." Staples, 511 U.S. at 605, 114 S.Ct. 1793
(citing United States v. United States Gypsum Co., 438 U.S.
422, 436-37, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978)). However,
eliminating the mens rea requirement is such a (p.613)fundamental departure from longstanding principles of
criminal law that courts have demanded an indication of legislative intent to do
so. Staples, 511 U.S. at 606, 114 S.Ct. 1793. Due
process requires some adequate, meaningful form of a fair warning or notice to a
respondent to a protective order that he will be committing a crime if he
possesses a firearm.
Because § 922(g)(8) is an obscure, highly
technical statute with no mens rea requirement, it violates Emerson's
Fifth Amendment due process rights to be subject to prosecution without proof of
knowledge that he was violating the statute. Accordingly, Emerson's Motion to
Dismiss the indictment as violative of the Fifth Amendment is granted.
D. Tenth Amendment
Emerson's last argument claims that 18 U.S.C. § 922(g)(8) violates the Tenth Amendment. The Tenth
Amendment provides that:
The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.
In New York v. United States, 505 U.S. 144,
112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), the Court noted that Tenth
Amendment issues can be resolved in one of two ways. The court can first inquire
whether an Act of Congress is authorized by one of the powers of Article I of
the Constitution. Id. at 155, 112 S.Ct. 2408 (citing,
e.g., Perez v. United States, 402 U.S. 146, 91 S.Ct.
1357, 28 L.Ed.2d 686 (1971); McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819)). In other cases the
court determines whether the Act of Congress invades the province of state
sovereignty reserved by the Tenth Amendment. Id. (citing
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528,
105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985); Lane County v.
Oregon, 74 U.S. (7 Wall.) 71, 19 L.Ed. 101 (1868)).
"If a power is delegated to Congress in the Constitution, the Tenth
Amendment expressly disclaims any reservation of that power to the States; if a
power is an attribute of state sovereignty reserved by the Tenth Amendment, it
is necessarily a power the Constitution has not conferred on Congress." New York, 505 U.S. at 156, 112 S.Ct. 2408 (citations
Because the Fifth Circuit has held that Congress acted pursuant to
its enumerated Commerce Clause power under Article I, Congress therefore enacted
18 U.S.C. § 922(g)(8) pursuant to a valid grant of power in
conformity with the Tenth Amendment. United States v.
Pierson, 139 F.3d 501 (5th Cir.1998). As mentioned previously, the
court in Pierson held that by creating a nexus between illegal firearm
possession and interstate commerce, Congress exercised its delegated power under
the Commerce Clause to reach a "discrete set of firearm possessions that
additionally have an explicit connection with or effect on interstate commerce."
Id. at 503. Therefore, under the first line of
inquiry set forth in New York, the statute is constitutional under the
The Court now turns to the second line of inquiry, whether the "Act
of Congress invades the province of state sovereignty reserved by the Tenth
Amendment." New York, 505 U.S. at 155, 112 S.Ct. 2408. In
New York, the Court held that the Low-Level Radioactive
Waste Policy Amendments Act of 1985 unconstitutionally "commandeer[ed]
the legislative processes of the States by directly compelling them to enact and
enforce a federal regulatory program." Id. at 176, 112 S.Ct. 2408
(quoting Hodel v. Virginia Surface Mining & Reclamation
Ass'n, Inc., 452 U.S. 264, 288, 101 S.Ct. 2352, 69 L.Ed.2d 1
In 1997, the Court refined this analysis by holding in Printz v.
United States that Congress may act pursuant to its Commerce Clause powers
and still violate principles (p.614)of state
sovereignty under the Tenth Amendment. 521 U.S. 898, 933, 117
S.Ct. 2365, 138 L.Ed.2d 914 (1997). In Printz, the Brady Act
commandeered state law enforcement officers to perform background checks on
prospective handgun owners. The Court held unconstitutional this asserted power
of the Federal Government "to impress into its service--and at no cost to
itself--the police officers of the 50 states." Id. at 922,
117 S.Ct. 2365.
By passing 18 U.S.C. § 922(g)(8), however,
Congress did not violate the Tenth Amendment the way it did in New York
and Printz, because here the federal government is not requiring state
legislatures to pass specific laws, nor is it "commandeering" state governments
into federal government service. Emerson argues, however, that §
922(g)(8) interferes with the ability of state judges to carry out their
state's domestic relations laws, thus impermissibly regulating an area reserved
for the states. It is true the Supreme Court has noted that family law is
traditionally an area of state concern. Hisquierdo v.
Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979). And
while it is arguable that § 922(g)(8) may offend general
Tenth Amendment principles of federalism, because Congress was acting through an
enumerated power in drafting the law, and the law does not command state
activity in support of it, this statute does not clearly violate the Tenth
Amendment under the Supreme Court's holdings in New York and
Printz. Accordingly, Emerson's Tenth Amendment challenge to the statute
Because 18 U.S.C. § 922(g)(8)
violates the Second and Fifth Amendments to the United States Constitution, the
Court GRANTS Emerson's Motion to Dismiss the Indictment. A
judgment shall be entered in conformity with this opinion.
 On February 26, 1999, the Court granted Defendant's Motion to
Dismiss. The following is the Court's memorandum opinion of the Order.
"Our most recent treatment of the Second Amendment
occurred in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83
L.Ed. 1206 (1939), in which we reversed the District Court's
invalidation of the National Firearms Act, enacted in 1934. In 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.'
Id., at 178, 59 S.Ct.
816. The Court did not, however, attempt to define, or otherwise
construe, the substantive right protected by the Second
"Marshaling an impressive array of historical
evidence, a growing body of scholarly commentary indicates that the 'right to
keep and bear arms' is, as the Amendment's text suggests, a personal right.
See, e.g., J. Malcolm, To Keep and Bear Arms: The Origins of an
Anglo-American Right 162 (1994); S. Halbrook, That Every Man Be
Armed, The Evolution of a Constitutional Right (1984); Van
Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236 (1994); Amar,
The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193
(1992); Cottrol & Diamond, The Second Amendment: Toward an
Afro-Americanist Reconsideration, 80 Geo. L.J. 309 (1991);
Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Kates,
Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich.
L.Rev. 204 (1983). Other
scholars, however, argue that the Second Amendment does not secure a personal
right to keep or bear arms. See, e.g., Bogus, Race, Riots, and
Guns, 66 S.Cal. L.Rev. 1365 (1993); Williams, Civic Republicanism
and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L.J. 551 (1991); Brown,
Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford
Levinson's The Embarrassing Second Amendment, 99 Yale L.J. 661 (1989);
Cress, An Armed Community: The Origins and Meaning of the Right to Bear
Arms, 71 J. of Am.Hist. 22 (1984). Although somewhat overlooked in our
jurisprudence, the Amendment has certainly engendered considerable academic,
as well as public, debate."