EMERSON
APPEAL DECIDED, 10/16/01!
APPEALS
COURT RULES:
Individual right to keep and bear arms is proper
model
for debate between
"individual rights model" and
"states rights" or "collective
rights" model.
(Summary of appeals court ruling
HERE.)
United States of America v. Timothy
Joe Emerson
U.S. District Court for the Northern District of Texas,
San Angelo Division
46 F. Supp. 2d 598 (N.D.Tex. 1999)
Decided April 7, 1999
Transcription independently made from the
Court's posted decision.
IN
THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
SAN ANGELO DIVISION
UNITED
STATES OF AMERICA
v.
TIMOTHY
JOE EMERSON
Criminal
Action No. 6:98CR103C
AMENDED
MEMORANDUM OPINION 1
. . . . . 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.
I.
BACKGROUND
. . . . . On August 28, 1998, Emerson's wife, Sacha, filed
a petition for divorce and application for a temporary
restraining order in the 119th District Court of Tom
Green County, Texas. The petition stated no factual basis
for relief other than the necessary recitals required
under the Texas Family Code regarding domicile, service
of process, dates of marriage and separation, and the
"insupportability" of the marriage. The
application for a temporary restraining 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.
II.
ANALYSIS
. . . . . As stated above, Emerson was indicted for
possession of a firearm while being under a restraining
order, in violation of 18 U.S.C. § 922(g)(8) ("the
Act"). This statute states that:
(g) It
shall be unlawful for any person --
(8)
who is subject to a court order that --
(A) was issued after a hearing of
which such person received actual notice, and
at which such person had an opportunity to
participate;
(B) restrains such person from
harassing, stalking, or threatening an
intimate partner of such person or child of
such intimate partner or person, or engaging
in other conduct that would place an intimate
partner in reasonable fear of bodily injury
to the partner or child; and
(C)(i) includes a finding that such
person represents a credible threat to the
physical safety of such intimate partner or
child; or
(ii) by its terms explicitly
prohibits the use, attempted use, or
threatened use of physical force against such
intimate partner or child that would
reasonably be expected to cause bodily injury
. . . .
18 U.S.C.
§ 922(g)(8).
. . . . . Emerson argues that 18 U.S.C. § 922(g)(8) is an
unconstitutional exercise of congressional power under
the Commerce Clause and the Second, Fifth, and Tenth
Amendments to the United States Constitution. The Court
will address these arguments seriatim.
A.
Commerce Clause
. . . . . Emerson first argues that 18 U.S.C. § 922(g)(8)
is an unconstitutional exercise of congressional power
under the Commerce Clause of the United States
Constitution. U.S. CONST. art. I, § 8, cl. 3. Pursuant
to the Supreme Court's holding in United
States v. Lopez, 514 U.S. 549 (1995), Emerson argues
that the Act is unconstitutional because it does not
regulate commercial activity.
. . . . . However, the Fifth Circuit Court of Appeals has
examined the validity of 18 U.S.C. § 922(g)(8) under a
Commerce Clause challenge and has held that the Act is
constitutional. United
States v. Pierson, 139 F.3d 501 (5th Cir. 1998). Accordingly,
Emerson cannot sustain a Motion to Dismiss under a
Commerce Clause challenge.
B.
Second Amendment
. . . . . Emerson claims that 18 U.S.C. § 922(g)(8)
violates his rights under the Second Amendment to the
United States Constitution. The Second Amendment states
that:
A well regulated Militia, being
necessary to the security of a free State,
the right of the people to keep and bear
Arms, shall not be infringed.
U.S.
CONST. amend. II.
. . . . . Only if the Second Amendment guarantees Emerson
a personal right to bear arms can he claim a
constitutional violation. Whether the Second Amendment recognizes an
individual right to keep and bear arms is an issue of
first impression within the Fifth Circuit. Emerson claims that he has a
personal right to bear arms which the Act infringes,
while at oral argument on the Motion to Dismiss, the
Government claimed it is "well settled" that
the Second Amendment creates a right held by the States
and does not protect an individual right to bear arms.
1.
Second Amendment Schools of Thought
. . . . . Two main schools of thought have developed on
the issue of whether the Second Amendment recognizes
individual or collective rights. These schools of thought
are referred to as the "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, 46488 (1995); Robert
Dowlut, The
Right to Keep and Bear Arms: A Right to Self-Defense
Against Criminals and Despots, 8 STAN. L. & POL'Y REV. 25 (1997)).
2.
Textual Analysis
. . . . . A textual analysis of the Second Amendment
supports an individual right to bear arms. A distinguishing characteristic
of the Second Amendment is the inclusion of an opening
clause or preamble, which sets out its purpose. No
similar clause is found in any other amendment. Stanford
Levinson, The
Embarrassing Second Amendment, 99 YALE L.J. 637, 644 (1989). While 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, 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 (199798).
. . . . . 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 (1990). The
Court held that the phrase "the people"
"seems to have been a term of art employed in select
parts of the Constitution."
The
Second Amendment protects "the right of the
people to keep and bear Arms," and the Ninth
and Tenth Amendments provide that certain rights
and powers are retained by and reserved to
"the people."
* * *
While
this textual exegesis is by no means conclusive,
it suggests that "the people" protected
by the Fourth Amendment, and by the First and
Second Amendments, . . . refers to a class of
persons who are part of a national community or
who have otherwise developed sufficient
connection with this country to be considered
part of that community. See United
States ex rel. Turner v. Williams, 194 U.S. 279, 292
(1904).
. . . . . The Court has also held that given their
contemporaneous proposal and passage, the amendments of
the Bill of Rights should be read in pari materia,
and amendments which contain similar language should be
construed similarly.
Patton
v. United States, 281 U.S. 276, 298 (1930), cited by David
Harmer, Securing a Free State: Why the Second
Amendment Matters, 1998 BYU L. REV. 55, 61 (1998). The 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 States.
3.
Historical Analysis
. . . . . "[T]here is a long tradition of widespread
lawful gun ownership by private individuals in this
country." Staples
v. United States, 511 U.S. 600, 610 (1994). A historical examination of the
right to bear arms, from English antecedents to the
drafting of the Second Amendment, bears proof that the
right to bear arms has consistently been, and should
still be, construed as an individual right.
a.
English History
. . . . . A review of English history explains the
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 2425 (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 20.
. . . . . Following the French and Indian War, England
increased taxes and stationed a large army in the
colonies. On April 3, 1769, the Boston Evening Post
announced that colonial authorities urged the citizenry
to take up arms. In reply to the claim that this request
was unlawful, the newspaper observed that:
It is certainly beyond human art
and sophistry, to prove the British
subjects, to whom the privilege of
possessing arms as expressly recognized
by the Bill of Rights, and who live in a
province where the law requires them to
be equipped with arms, are guilty of an
illegal act, in calling upon one another
to be provided with them, as the law
directs.
. . . . . HARDY, supra, at 589-90 (quoting Oliver
M. Dickerson, BOSTON
UNDER MILITARY RULE 61
(1936)). Shortly after the "Boston Tea Party,"
British soldiers, led by General Gage, attempted to
disarm the colonists. MALCOLM, supra, at 144.
The British Parliament banned all exports of muskets and
ammunition to the colonies and began seizing the
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. 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 Elliot, DEBATES IN THE GENERAL STATE CONVENTIONS
425 (3d ed. 1937)). Similarly, the Federal
Farmer referred
to a "militia, when properly formed, [as] in fact
the people themselves." Id. (quoting
Richard Henry Lee, OBSERVATIONS
LEADING TO A FAIR EXAMINATION OF THE SYSTEM OF GOVERNMENT PROPOSED BY THE LATE CONVENTION:
LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN
123 (Walter H. Bennett ed., 1978)).
. . . . . The individual right to bear arms, a right
recognized in both England and the colonies, was a
crucial factor in the 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 of Rights.
c.
The Ratification Debates
. . . . . A foundation of American political thought
during the Revolutionary period was the well justified
concern about political corruption and governmental
tyranny. Even the federalists, fending off their
opponents who accused them of creating an oppressive
regime, were careful to acknowledge the risks of tyranny.
Against that backdrop, the framers saw the personal right
to bear arms as a potential check against tyranny.
Theodore Sedgwick of Massachusetts expressed this
sentiment by declaring that it is "a chimerical idea
to suppose that a country like this could ever be
enslaved . . . Is it possible . . . that an army could be
raised for the purpose of enslaving themselves or their
brethren? or, if raised whether they could subdue a
nation of freemen, who know how to prize liberty and who
have arms in their hands?" MALCOLM, supra
at 157 (citing 2 Jonathan Elliot, THE DEBATES IN
THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION
97 (2d ed. 1863)). Noah Webster similarly argued:
Before a standing army can rule the
people must be disarmed; as they are in
almost every kingdom in Europe. The supreme
power in America cannot enforce unjust laws
by the sword; because the whole body of the
people are armed, and constitute a force
superior to any band of regular troops that
can be, on any pretence, raised in the United
States.
Id.
(citing Noah Webster, AN EXAMINATION INTO THE LEADING PRINCIPLES OF THE FEDERAL CONSTITUTION (1787), reprinted in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES, PUBLISHED DURING ITS DISCUSSION BY THE PEOPLE,
1787-1788, at 56 (Paul L. Ford, ed. 1971) (1888)).
Richard Lee 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
America":
Whenever, therefore, the profession
of arms becomes a distinct order in the state
. . . the end of the social compact is
defeated . . . . No free government was ever
founded, or ever preserved its liberty,
without uniting the characters of the citizen
and the soldier in those destined for the
defence of the state . . . . Such are a well
regulated militia, composed of the
freeholders, citizen and husbandman, who take
up arms to preserve their property, as
individuals, and their rights as freemen.
HALBROOK, supra
at 72 (citing STATE GAZETTE
(Charleston), Sept. 8, 1788). . . . . .
. . . . . George Mason argued the importance of the
militia and right to bear arms by reminding his
compatriots of 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 42526). Because all were
members of the militia, all enjoyed the right to
individually bear arms to serve therein.
. . . . . The framers thought the personal right to bear
arms to be a paramount right by which other rights could
be protected. Therefore, writing after the ratification
of the Constitution, but before the election of the first
Congress, James Monroe included "the right to keep
and bear arms" in a list of basic "human
rights" which he proposed to be added to the
Constitution. HALBROOK, supra at 223 n. 145
(citing James Monroe Papers, New York Public Library
(Miscellaneous Papers of James Monroe)).
. . . . . The framers also saw an armed populace as the
safeguard of religious liberty. Zachariah Johnson told
the Virginia convention their liberties would be safe
because
the people are not to be disarmed of
their weapons. They are left in full
possession of them. The government is
administered by the representatives of the
people, voluntarily and freely chosen. Under
these circumstances should anyone attempt to
establish their own system [of religion], in
prejudice of the rest, they would be
universally detested and opposed, and easily
frustrated. This is the principle which
secures religious liberty most firmly. The
government will depend on the assistance of
the people in the day of distress.
MALCOLM, supra
at 157 (citing 3 ELLIOT 646)).
. . . . . Patrick Henry, also in the Virginia convention,
eloquently argued for the dual rights to arms and
resistance to oppression: "Guard with jealous
attention the public liberty. Suspect everyone who
approaches that jewel. Unfortunately, nothing will
preserve it but downright force. Whenever you give up
that force, you are ruined." HALBROOK, supra
at 73 (citing 3 ELLIOT at 45). Thus, the federalists
agreed with Blackstone that an armed populace was the
ultimate check on tyranny. MALCOLM, supra at
157.
. . . . . While both Monroe and Adams supported
ratification of the Constitution, its most influential
framer was James Madison. In THE FEDERALIST NO. 46, he
confidently contrasted the federal government of the
United States to the European despotisms which he
contemptuously described as "afraid to trust the
people with arms." He assured his fellow citizens
that they need never fear their government because of
"the advantage of being armed." Don B. Kates,
Jr., Handgun
Prohibition and The Original Meaning of The Second
Amendment,
82 MICH. L. REV. 204, 228 (1983) (quoting THE FEDERALIST NO. 46, at
371 (James Madison) (John. C. Hamilton ed., 1864)). Many
years later, Madison restated the sentiments of THE FEDERALIST NO. 46 by
declaring: "[A] government resting on a minority is
an aristocracy, not a Republic, and could not be safe
with a numerical and physical force against it, without a
standing army, an enslaved press, and a disarmed
populace." Id. (quoting Ralph L. Ketcham, JAMES MADISON: A BIOGRAPHY 64, 640 (1971)).
. . . . . Although on the other side of the ratification
debate, Anti-Federalist Patrick Henry was unequivocal on
the individual right to bear arms. During the Virginia
ratification convention, he objected to the
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. ELLIOT, supra,
at 45).
. . . . . By January of 1788, Delaware, Pennsylvania, New
Jersey, Georgia and Connecticut ratified the Constitution
without insisting upon amendments. Several specific
amendments were proposed, but were not adopted at the
time the Constitution was ratified. The Pennsylvania
convention, for example, debated fifteen amendments, one
of which concerned the right of the people to be armed,
another with the militia. The amendment on the right to
bear arms read:
That the people have a right to bear
arms for the defence of themselves and their
own State, or the United States, or for the
purpose of killing game; and no law shall be
passed for disarming the people or any of
them, unless for crimes committed, or real
danger of public injury from individuals; and
as standing armies in time of peace are
dangerous to liberty, they ought not to be
kept up; and that the military shall be kept
under strict subordination to and be governed
by the civil power.
MALCOLM, supra
at 158 (citing PENNSYLVANIA
AND THE FEDERAL CONSTITUTION,
1787-1788, at 422).
. . . . . The Massachusetts convention also ratified the
Constitution with an attached list of proposed
amendments. Id. In the end, the ratification
convention was so evenly divided between those for and
against the Constitution that the federalists agreed to
amendments to assure ratification. Id. Samuel
Adams proposed that the Constitution
[B]e never construed to authorize
Congress to infringe the just liberty of the
press, or the rights of conscience; or to
prevent the people of the United States, who
are peaceable citizens, from keeping their
own arms; or to raise standing armies, unless
when necessary for the defence of the United
States, or of some one or more of them; or to
prevent the people from petitioning, in a
peaceable and orderly manner, the federal
legislature, for a redress of their
grievances: or to subject the people to
unreasonable searches and seizures.
Id.
(citing DEBATES AND PROCEEDINGS IN THE CONVENTION
OF THE COMMONWEALTH OF MASSACHUSETTS, HELD IN
THE YEAR 1788, at 198-99 (Bradford Pierce and Charles
Hale, ed., 1856)).
. . . . . Other states which had not yet ratified the
Constitution followed the Maryland 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 person.
MALCOLM, supra
at 159.
. . . . . That Madison envisioned a personal right to bear
arms, rather than merely a right for the states to
organize militias, is evident from his desired placement
of the right in the Constitution. 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
70708 (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 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, 10001 (9th Cir. 1996) (holding that
plaintiff lacked standing to sue for denial of concealed
weapons permit, because Second Amendment does not protect
possession of weapon by private citizen; right to bear
arms is held by the states); Love
v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995) (holding that
Second Amendment does not confer absolute individual
right); United
States v. Warin, 530 F.2d 103, 10607 (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, 92023 (1st Cir. 1942) (holding
that federal government may limit the keeping and bearing
of arms by a single individual); Hamilton
v. Accu-Tek,
935 F. Supp. 1307, 1318 (E.D.N.Y. 1996) (holding that
Second Amendment right to bear arms establishes a
collective rather than an individual or private right).
. . . . . However, the only modern Second Amendment case
from the Supreme Court is United
States v. Miller, 307 U.S. 174 (1939). Jack Miller was charged with
moving a sawed-off shotgun in interstate commerce in
violation of the National Firearms Act of 1934. Among
other things, Miller had not registered the firearm, as
required by the Act. The court below dismissed the
charge, accepting 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.
And "[c]ertainly it is not within judicial notice
that this weapon is any part of the ordinary military
equipment or that its use could contribute to the common
defense." Id. at 178 (citation omitted).
Thus, Miller might have had a tenable argument had he
been able to show that he was keeping or bearing a weapon
that clearly had a potential military use. Justice
McReynolds went on to describe the purpose of the Second
Amendment as "assur[ing] the continuation and
render[ing] possible the effectiveness of [the
Militia]." Id. at 178. He contrasted the
Militia with troops of a standing army, which the
Constitution indeed forbade the states to keep without
the explicit consent of Congress. "The sentiment of
the time strongly disfavored standing armies; the common
view was that adequate defense of country and laws could
be secured through the Militia--- civilians primarily,
soldiers on occasion." Id. at 179.
McReynolds noted further that "the debates in the
Convention, the history and legislation of Colonies and
States, and the writings of approved commentators [all]
[s]how plainly enough that the Militia comprised all
males physically capable of acting in concert for the
common defense." Id.
. . . . . It is difficult to interpret Miller as
rendering the Second Amendment meaningless as a control
on Congress. Ironically, one can read Miller as
supporting some of the most extreme anti-gun control
arguments; for example, that the individual citizen has a
right to keep and bear bazookas, rocket launchers, and
other armaments that are clearly used for modern warfare,
including, of course, assault weapons. Under Miller,
arguments about the constitutional legitimacy of a
prohibition by Congress of private ownership of handguns
or, what is much more likely, assault rifles, thus might
turn on the usefulness of such guns in military settings.
Sanford Levinson, The Embarrassing Second Amendment,
99 YALE L.J. 637, 65455 (1989).
. . . . . Miller did not answer the crucial
question of whether the Second Amendment embodies an
individual or collective right to bear arms. Although its holding has been
used to justify many previous lower federal court rulings
circumscribing Second Amendment rights, the Court in Miller
simply chose a very narrow way to rule on the issue of
gun possession under the Second Amendment, and left for
another day further questions of Second Amendment
construction. See Printz
v. United States, 521 U.S. 898, 93738 & n.1, 2 (1997)
(Thomas, J., concurring).
This Court has not had recent
occasion to consider the nature of the
substantive right safeguarded by the Second
Amendment. 2 If, however, the
Second Amendment is read to confer a personal
right to "keep and bear arms," a
colorable argument exists that the Federal
Government's regulatory scheme, at least as
it pertains to the purely intrastate sale or
possession of firearms, runs afoul of that
Amendment's protections. 3
6.
Prudential Concerns
. . . . . Some scholars have argued that even if the
original intent of the Second Amendment was to provide an
individual right to bear arms, modern-day prudential
concerns about social costs outweigh such original intent
and should govern current review of the amendment.
However, there is a problem with such reasoning. If one
accepts the plausibility of any of the arguments on
behalf of a strong reading of the Second Amendment, but,
nevertheless, rejects them in the name of social prudence
and the present-day consequences of an individual right
to bear arms, why do we not apply such consequentialist
criteria to each and every part of the Bill of Rights?
LEVINSON, supra at 658.
. . . . . As Professor Ronald Dworkin has argued, what it
means to take rights seriously is that one will honor
them even when there is significant social cost in doing
so. Protecting freedom of speech, the rights of criminal
defendants, or any other part of the Bill of Rights has
significant 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 mindset changes, however, when
the Second Amendment is concerned.
"Cost-benefit" analysis, rightly or wrongly,
has become viewed as a "conservative" weapon to
attack liberal rights. Yet the tables are strikingly
turned when the Second Amendment comes into play. Here
"conservatives" argue in effect that social
costs are irrelevant and "liberals" argue for a
notion of the "living Constitution" and
"changed circumstances" that would have the
practical consequence of erasing the Second Amendment
from the Constitution. LEVINSON, supra at
65758.
. . . . . 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 (1994)).
. . . . . 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 gun possession based upon court orders with
particularized findings of the likelihood of violence,
then the statute would not be so offensive, because there
would be a reasonable nexus between gun possession and
the threat of violence. However, the statute is infirm
because it allows one to be subject to federal felony
prosecution if the order merely "prohibits the use,
attempted use, or threatened use of physical force
against [an] intimate partner." 18 U.S.C. §
922(g)(8)(C)(ii).
. . . . . However, prosecution based on such an order
would be tautological, for § 922(g)(8)(C)(i) merely
repeats in different wording the requirement in
subsection (B) that the order "restrains such person
from harassing, stalking, or threatening an intimate
partner of such person or child of such intimate partner
or person, or engaging in other conduct that would place
an intimate partner in reasonable fear of bodily injury
to the partner or child." §922 (g)(8)(B). All that
is required for prosecution under the Act is a
boilerplate order with no particularized findings. Thus,
the statute has no real safeguards against an arbitrary
abridgement of Second Amendment rights. Therefore, by
criminalizing protected Second Amendment activity based
upon a civil state court order with no particularized
findings, the statute is over-broad and in direct
violation of an 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
lawful conduct.
. . . . . Firearm possession is a valuable liberty
interest imbedded in the Second Amendment to the United
States Constitution. "[T]here is a long tradition of
widespread lawful gun ownership by private individuals in
this country." Staples
v. United States, 511 U.S. 600, 610 (1994). Thus, Emerson has a
protected liberty interest in firearm possession under
the Fifth Amendment.
. . . . . "It is wrong to convict a person of a crime
if he had no reason to believe that the act for which he
was convicted was a crime, or even that it was wrongful.
This is one of the bedrock principles of American law. It
lies at the heart of any civilized system of law." United
States v. Wilson, 159 F.3d 280, 293 (7th Cir. 1998)
(Posner, C.J., dissenting). It offends both substantive
and procedural due process for Emerson to be convicted of
a crime he did not know existed. Because 18 U.S.C. §
922(g)(8) is such an obscure criminal provision, it is
unfair to hold him accountable for his otherwise lawful
actions.
. . . . . The conduct this statute criminalizes is malum
prohibitum, not malum in se. In other
words, there was nothing inherently evil about Emerson
possessing a firearm while being under a domestic
restraining order. His conduct was unlawful merely
because the statute mandated that it be. Wilson,
159 F.3d at 294 (Posner, C.J., dissenting). Section
922(g)(8) is one of the most obscure of criminal
provisions. Here, Emerson owned a firearm, and knew or
should have known that if, for example, he was convicted
of a felony, he would have to relinquish ownership of his
firearm. If by chance he did not know this, the
sentencing judge or the probation officer would have
informed him of the law. Nevertheless, when Emerson was
made subject to the restraining order telling him to not
harass his wife, Emerson could not have known of the
requirement to relinquish his gun unless the presiding
judge issuing the order told him. In this case, the state
district judge did not tell Emerson about the
requirement. 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
29495.
. . . . . Chief Judge Posner of the Seventh Circuit aptly
explains the dilemma between the maxim "ignorance of
the law is no excuse" and the inherent
unreasonableness of criminal prosecutions involving
obscure violations of law:
We want people to familiarize
themselves with the laws bearing on their
activities. But a reasonable opportunity
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. 184, 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 (1957).
. . . . . In Lambert, a Los Angeles ordinance
made it a crime for a convicted felon to remain in the
city for more than five days without registering. Mrs.
Lambert, a felon, failed to register. The Supreme Court
held that the ordinance violated due process when applied
to a person who had no notice of a duty to report. Id.
at 229. The Court found that, while a legislative body
may eliminate the mens rea from the elements of
an offense, the constitutional requirement of due process
of law places limits on this practice. Id. at
228. "[T]he existence of a mens rea is the
rule of, rather than the exception to, the principles of
AngloAmerican criminal jurisprudence." Staples,
511 U.S. at 605 (citing United
States v. United States Gypsum Co., 438 U.S. 422, 436-37 (1978)).
However, eliminating the mens rea requirement is
such a fundamental departure from longstanding principles
of criminal law that courts have demanded an indication
of legislative intent to do so. Staples, 511
U.S. at 606. Due process requires some adequate,
meaningful form of a fair warning or notice to a
respondent to a protective order that he will be
committing a crime if he possesses a firearm.
. . . . . Because § 922(g)(8) is an obscure, highly
technical statute with no mens rea requirement, it
violates 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.
U.S.
CONST. Amend. X.
. . . . . In New
York v. United States, 505 U.S. 144 (1992), the Court
noted that Tenth Amendment issues can be resolved in one
of two ways. The court can first inquire whether an Act
of Congress is authorized by one of the powers of Article
I of the Constitution. Id. at 155 (citing, e.g.,
Perez
v. United States, 402 U.S. 146 (1971); McCulloch v. Maryland,
4 Wheat 316 (1819)). In other cases the court determines
whether the Act of Congress invades the province of state
sovereignty reserved by the Tenth Amendment. Id.
(citing Garcia
v. San Antonio Metro. Transit Auth.., 469 U.S. 528 (1985); Lane
County v. Oregon, 7 Wall. 71 (1869)).
. . . . . "If a power is delegated to Congress in the
Constitution, the Tenth Amendment expressly disclaims any
reservation of that power to the States; if a power is an
attribute of state sovereignty reserved by the Tenth
Amendment, it is necessarily a power the Constitution has
not conferred on Congress." New York, 505
U.S. at 156 (citations omitted).
. . . . . Because the Fifth Circuit has held that Congress
acted pursuant to its enumerated Commerce Clause power
under Article I, Congress therefore enacted 18 U.S.C. §
922 (g)(8) pursuant to a valid grant of power in
conformity with the Tenth Amendment. United
States v. Pierson, 139 F.3d 501 (5th Cir. 1998). As mentioned
previously, the court in Pierson held that by
creating a nexus between illegal firearm possession and
interstate commerce, Congress exercised its delegated
power under the Commerce Clause to reach a "discrete
set of firearm possessions that additionally have an
explicit connection with or effect on interstate
commerce." Id. at 503. Therefore, under the
first line of inquiry set forth in New York, the
statute is constitutional under the Tenth Amendment.
. . . . . The Court now turns to the second line of
inquiry, whether the "Act of Congress invades the
province of state sovereignty reserved by the Tenth
Amendment." New York, 505 U.S. at 155. In New
York, the Court held that the Low-Level Radioactive
Waste Policy Amendments Act of 1985 unconstitutionally
"commandeer[ed] the legislative processes of the
States by directly compelling them to enact and enforce a
federal regulatory program." Id. at 176
(quoting Hodel
v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 288 (1981)).
. . . . . In 1997, the Court refined this analysis by
holding in Printz v. United States that Congress
may act pursuant to its Commerce Clause powers and still
violate principles of state sovereignty under the Tenth
Amendment. 521 U.S. 898, 933 (1997). In Printz,
the Brady Act commandeered state law held
unconstitutional this asserted power of the Federal
Governmentenforcement officers to perform background
checks on prospective handgun owners. The Court "to
impress into its service -- and at no cost to itself --
the police officers of the 50 states." Id.
at 922.
. . . . . By passing 18 U.S.C. § 922(g)(8), however,
Congress did not violate the Tenth Amendment the way it
did in New York and Printz, because
here the federal government is not requiring state
legislatures to pass specific laws, nor is it
"commandeering" state governments into federal
government service. Emerson argues, however, that §
922(g)(8) interferes with the ability of state judges to
carry out their states domestic relations laws,
thus impermissibly regulating an area reserved for the
states. It is true the Supreme Court has noted that
family law is traditionally an area of state concern. Hisquierdo
v. Hisquierdo, 439 U.S. 572, 581 (1979). And while it is
arguable that § 922(g)(8) may offend general Tenth
Amendment principles of Federalism, because Congress was
acting through an enumerated power in drafting the law,
and The law does not command state activity in support of
it, this statute does not clearly violate the Tenth
Amendment under the Supreme Courts holdings in New
York and Printz. Accordingly,
Emersons Tenth Amendment challenge to the statute
fails.
III.
CONCLUSION
. . . . . Because 18 U.S.C. § 922(g)(8) violates the
Second and Fifth Amendments to the United States
Constitution the court GRANTS
Emersons Motion to Dismiss the Indictment. A
judgement shall be entered in conformity with this
opinion.
SO
ORDERED. Dated March 30,
1999.
|
[signed]
SAM
R. CUMMINGS
UNITED
STATES DISTRICT JUDGE
|
Notes,
were at the bottom of each referencing printed page.
. . . .
. (1) On February 26, 1999, the Court
granted Defendant's Motion to Dismiss. The following is
the Court's memorandum opinion of the Order. [return]
. . . . . (2) "Our most recent treatment
of the Second Amendment occurred in United States v.
Miller, 307 U.S. 174 (1939), in which we reversed
the District 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. The Court did not, however, attempt to
define, or otherwise construe, the substantive right
protected by the Second Amendment." [return]
. . . . . (3) "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." [return]
Transcription independently made from the
Court's posted decision.
|