2A Court Challenge


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bamawrx
June 11, 2004, 04:47 PM
Gentlemen,

I am doing some homework in preparation for a federal law suit. The purpose of the suit is to challenge the Constitutionality of various gun laws. I need the help of an SOT and pro-2a lawyer. It is preferable that these individuals live in Alabama, but this is not a requirement.

It is my hope that a THR member may fit the above profile, and be willing to explore my case. This will stir the hornets nest, so be prepared for a fight. If the case moves forward, I will be posting updates on this and other sites, plus start a legal defense fund.

I am not currently in trouble, and have broken no laws. This case is being carefully designed to be offensive in nature, and to proactively seek to have our God given rights recognized by our government peaceably.

Regards
Bamawrx

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Jim March
June 11, 2004, 05:10 PM
Details?

Mind you, fighting on offense in civil court versus defense in criminal court is a GOOD thing, of the top five or so keys to victory.

But what else are you doing here? Which law are you going to challenge, on what basis?

Graystar
June 11, 2004, 08:04 PM
Details? Yes, give details. We're not lawyers but we might be able to alert you of some obvious showstoppers without you having to spend money to learn them.

bamawrx
June 12, 2004, 01:05 AM
Here is the basic framework of the plan:

File proper paperwork with ATFE requesting authorization to manufacture a selective fire rifle. More specifically, I would propose the conversion of an AR-15 to selective fire. The request will be denied based on existing law such as the 1986 ban.

I have checked with legal counsel, and I can use this denial as a basis for a federal law suit. My only claim will be a constitutional one, as the request is indeed an unlawful one. The limited nature of the claim reduces the possibility of success.

I am persuaded that in order for my plan to have the best chance of success the following will be required:

First. In US vs. Miller the Supreme Court denied the unconstitutionality of the 1934 gun control act based on the dubious distinction that a short barreled shotgun had no use in the militia. Never mind the short barreled shotgun predates the rifled bore in combat. The Court will not be able to make the same claim about an AR-15 for obvious reasons.

Second. The proposed manufacture is a “home made” project which is important due to the US vs. Stewart case in which the 9th ruled that Congress exceeded its power under the interstate commerce clause in regulating home made firearms. I feel this ruling has merit and should stand.

Third. It is important that we get a decent case not based on a felony trial involving an unsavory character. The individual(s) bringing the suit should be model citizens, clean in appearance, clear on history, and able to put forth a positive image to the press. Not to mention the fact that it would help if the person was a male over the age of 16 and fit for service in a militia.

Fourth. I live in a district that will nearly guarantee that my federal judge will hear the case fully with out negative biases. I have also checked this out with a former federal judicial aid and he assured me of such.

My plan is to put together a legal team and pay out of my own pocket to get this started. I am willing to do what is necessary, and I feel that you gentlemen will rally if the case is promising. I want to do this only once and get it right. Now that you have my basic framework, I would appreciate thoughtful insight into my proposal.

For those who are interested the legal process it could look something like this. First make application and get denied. File law suit in federal court making a constitutional challenge to the applicable codes. Win or loose legal battle in lower court. Appeal (either party) to appellate court and most likely have oral arguments if we won. An appellate court would want to hear oral arguments if the lower court ruled code unconstitutional. Win or loose case at appellate level, and appeal to US Supreme Court. The SC most likely won’t hear the case. The SC is overdue to tackle these issues, so I give us a better than normal chance. If I am successful in my district, but don’t get to the SC then the lawsuit would be simple to file in all of the federal district by you guys.

DMF
June 12, 2004, 01:25 AM
The proposed manufacture is a “home made” project which is important due to the US vs. Stewart case in which the 9th ruled that Congress exceeded its power under the interstate commerce clause in regulating home made firearms. I feel this ruling has merit and should stand. I am not an extremely familiar with that ruling, but I don't think the 9th Circuit ruling allowed for conversion of previously existing firearms, but only the manufacture of complete manufacture of a new firearm. So I think that may be a major flaw with your plan.

Someone please correct me if I misunderstood this ruling, because I haven't taken a great deal of time on it.

DMF
June 12, 2004, 01:39 AM
Sorry to pee in your cornflakes, but I looked it up and it appears US v. Stewart could not be used to support the idea of converting an already existing firearm. http://caselaw.lp.findlaw.com/data2/circs/9th/0210318p.pdf

In discussing the Commerce Clause challenge to the conviction:
"Stewart’s case reveals the limits of Rambo’s logic. Contrary
to Rambo’s assumption that an unlawful transfer must
precede unlawful possession, Stewart did not acquire his
machineguns from someone else: He fabricated them himself.
The government has never contested Stewart’s claim that the
machineguns were entirely homemade, and the evidence supports
his claim. . . .

. . . Some components of Stewart’s machineguns had
crossed state lines, but these components did not add up to a
gun. Not even close."

However, you are talking about converting an already existing firearm, which has most likely already crossed state lines, and therefore would fall under the commerce clause.

Granted there is much more to this case, but I think it's likely that the conversion of an already existing functioning AR-15 is substantially different than what Stewart did.

Again, I'm not a lawyer, but I'd hate to see waste a lot of money on a project that is very likely to fail.

Jim March
June 12, 2004, 01:39 AM
No, actually, this is pretty good stuff here. I've seen WAY worse in terms of legal theories and proposed steps.

If it flops, you don't get jailed :). Nice bonus.

I think the Stewart case will be citable precedent. Not *binding* - wrong circuit, and ain't quite the same situation although it's close enough that it'll be read.

Right. Next question is to find a local lawyer. I'm in California, I know a bunch out here but none with the resources to fight a case out there.

Suggestion: unless somebody around here has some pointers, what you need to do is hook up with your state's RKBA orgs, or if you're near a state border the neigboring state org, and see if they know anybody local.

A warning though: most "gun rights lawyers" come out of the field of criminal defense. You need somebody well-versed in constitutional law; best source is somebody that does employment discrimination stuff on the side or as a main thing.

What else...I assume you've read the State vs. Aymette case that Miller cites to? Tennessee Supreme Court 1840 - defines "militia weapon". READ THAT CASE TOP TO BOTTOM if you haven't already.

Keep us informed as to progress.

:)

Graystar
June 12, 2004, 03:30 AM
Unfortunately, there seems to be logical and legal problems with your proposal.

First, unless there exist some other system I am unaware of, the only “authorization” you can apply for is a license to “engage in the business of…manufacturing...firearms”

http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/44/sections/section_923.html

So your first problem is that by applying for a license you have implied commerce. It’s kinda hard to follow that up with the “homemade/personal use” argument. The second problem is that the law in question is simply a prohibition to engage in business. To find that it violates our rights you’d have to explain how we have a right to engage in the business of producing firearms, and how such right should not be subject to regulation. Such a task is not legally viable.

Subsection o of sec 922 is the section of law that you are really targeting. That is the law that relates to Stewart. That section is a simple prohibition to possess a machine gun. But here there are also problems. The Stewart ruling has nothing to do with rights. Invalidating the statute, and thus eliminating the Fed’s ability to prevent you from making a machinegun, doesn’t eliminate the state’s ability to do the same. There’s also the issue that others have mentioned, in that you are proposing to convert an existing weapon. That falls outside of the Stewart ruling.

http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=18&sec=922
(gotta scroll down to find subsection o)

Finally, your view on Miller is incorrect. The Court’s procedure clearly indicates a view that the law defines the weapons of the militia. The excerpts from various militia acts, that are a part of the Miller ruling, describe the weapon that a militiaman should bear. These acts all called for long guns...not short guns. *That* is why there was no evidence of short guns being weapons of the militia. So it does not matter if an AR-15 has a long barrel...all that matters is whether the state law says you can have one for militia purposes. And it doesn’t matter what regular troops use. It has long been held that militiamen are not regular troops.

That basically leaves you in the same position as others, such as Silveira, where you’re trying to assert an unaccepted interpretation of a right. In order to assert a 2nd Amendment right, you first have to change the justice system’s current view of the 2nd. I see nothing in your plan that works on that part. To simply say, “I have a right” when the system has held that you don’t, gets you nothing but a booting right out of court.

Personally, I have doubts about this course of action.

Matthew Courtney
June 12, 2004, 09:42 AM
I believe it was US v Emerson where SCOTUS held that once a firearm is in the possession of its end user, it is no longer subject to regulation under the commerce besause it no longer is in interstate commerce.

Graystar
June 12, 2004, 10:43 AM
The US v. Emerson case of a few years ago never made it to the Supreme Court. Is there some other Emerson case?

Matthew Courtney
June 12, 2004, 12:09 PM
My mistake, I was refering to US v Lopez. Sorry about that.

whistlepig
June 12, 2004, 12:34 PM
The excerpts from various militia acts, that are a part of the Miller ruling, describe the weapon that a militiaman should bear. These acts all called for long guns...not short guns

Except that Miller summarizes: The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

In 1939, the court would certainly have been aware of the evolution of arms since the colonial period. The ruling also references a 1649 MA militia law: According to the usage of the times, the infantry of Massachusetts consisted of pikemen and musketeers. The law, as enacted in 1649 and thereafter, provided that each of the former should be armed with a pike, corselet, head-piece, sword, and knapsack.

It seems clear the the court recognized the possibility for a broad scope in militia weapons. It's just that defense didn't present evidence for inclusion of a short-barreled shotgun.

The "common use at the time" phrase seems to open the door for a defense based on evidence that a particular weapon is suitable for militia use. Use of a military-pattern then seems, on it's face, to fit the definition.

The Court’s procedure clearly indicates a view that the law defines the weapons of the militia.

I hadn't heard it put that way before. This brings the further question of how many, if any, states currently define what constitutes a militia weapon. In particular, bamawrx's home state.

DMF
June 12, 2004, 01:05 PM
As has already been pointed out Emerson never went up to the Supreme Court. Again, I think your interpretation of Lopez is incorrect. Again not a case I am intimately familiar with but it conflicts with other established precedent. Based on that interpretation as soon as child porn, cocaine, etc. were with the end user then the commerce clause would no longer apply and therefore federal law prohibiting trafficking in those materials would not apply. That is wholly incorrect based on two centuries of case law.

Jim March
June 12, 2004, 01:06 PM
The Miller court relied on an 1840 TN case (Aymette) to define the term "militia weapon". That definition is, boiled down, "weapons capable of being used in civilized warfare".

The AR15, M16 and M4 all qualify. Ditto M14, FAL, AKs, etc. It doesn't say WE need to be the ones so using them. Any gun used by a civilized nation's military qualifies. And yes, there's a number of at least halfway respectable nations still using the AK...heck, Israel's Galil is an AK variant...

I'm more concerned about the issue of BATFE not giving "personal use conversion permits". I know very little about full-auto rules under the NFA as practiced now...somebody go PM John Ross on this thread, he'll know.

Treylis
June 12, 2004, 01:14 PM
If it flops, you don't get jailed . Nice bonus.

Yeah, I realized that immediately too. Indeed, not bad.

Matthew Courtney
June 12, 2004, 01:17 PM
As has already been pointed out Emerson never went up to the Supreme Court. Again, I think your interpretation of Lopez is incorrect. Again not a case I am intimately familiar with but it conflicts with other established precedent. Based on that interpretation as soon as child porn, cocaine, etc. were with the end user then the commerce clause would no longer apply and therefore federal law prohibiting trafficking in those materials would not apply. That is wholly incorrect based on two centuries of case law.

Lopez struck down The Federal Firearms Free School Zones Act, reasoning that a firearm in the hands of the end user is no longer in or affecting interstate commerce and thus, no longer subject to regulation by Congress under the commerce clause.

Your comparison to materials that have illegally traveled in interstate commerce is not on point because neither the firearm in Lopez or the hypothetical AR-15 to be modified ever illegally traveled in interstate commerce.

boofus
June 12, 2004, 01:19 PM
If the piece are you trying to register is just a bolt or a sear then that part will be counted by the ATF as the 'firearm'. Those small pieces can conceivably be completely homemade.

The rest of the gun can't be counted towards 'interstate commerce' because they don't add up to a working weapon without the sear or bolt. You may have to 'marry' the sear/bolt to a particular receiver.

Components don't count, or it'd sorta be like saying building a house in Texas is interstate commerce because the lumber came from Canada, the trucker that shipped the lumber drank a coke from Pittsburg, and the tires on the rig that hauled the wood to Home Depot came from Oregon, the screws and nails came from New York, etc...

cordex
June 12, 2004, 01:46 PM
Components don't count, or it'd sorta be like saying building a house in Texas is interstate commerce because the lumber came from Canada, the trucker that shipped the lumber drank a coke from Pittsburg, and the tires on the rig that hauled the wood to Home Depot came from Oregon, the screws and nails came from New York, etc...
Which is, unfortunately, how the ICC has been used.

I'm pretty sure the ATF allows for the manufacture or modification of a weapon by the end user. I'm not sure whether they actually send rejection letters based on the 1986 FOPA amendment or just ignore you.

The chances of this working seem rather slim to me, but I like the idea quite a bit.

7.62FullMetalJacket
June 12, 2004, 02:11 PM
Keep us informed. This will take years. But nobody does time............


unless we lose :scrutiny: :uhoh: :D

Daedalus
June 12, 2004, 04:54 PM
I am subscribing to this thread. Keep us posted and I hope you go through with this and hope you make the "moon shot" of firearms cases. I will happily contribute what money I can spare to the legal defense fund if this gets off the ground.

Kharn
June 12, 2004, 08:14 PM
You might want to explore the possibility of starting with a 0% AR15 forging (available from www.dsarms.com for $24+shipping, it will need some time in a machine shop, but its basic highschool level stuff). That should get you around interstate commerce, as the part the ATF defines as 'the firearm' wasnt a firearm when it traveled in interstate commerce.

Kharn

Graystar
June 13, 2004, 05:34 AM
The Miller court relied on an 1840 TN case (Aymette) to define the term "militia weapon". That definition is, boiled down, "weapons capable of being used in civilized warfare". They did no such thing. There is no such term defined or referenced in neither the Miller ruling nor the Aymette ruling. The Supreme Court used the cite in support of their plainly-state conclusion; that a weapon must have "...some reasonable relationship to the preservation or efficiency of a well regulated militia..." if its keeping and bearing is to be protected by the 2nd Amendment. Nowhere does the court explicitly define how this “reasonable relationship” is established. All we can do is infer how this “reasonable relationship” is to be established by reviewing the Court’s procedure. This procedure is clearly demonstrated by the fact that the Court felt it necessary to included excerpts, from various militia acts, describing the weapon that the militiaman was expected to bear. Since the Court didn’t use any other reference, one can infer that the Court’s view was that law defines the weapon, and nothing else.

Of course, this can all change with the next ruling that is made.

bamawrx
June 13, 2004, 11:43 AM
Gentlemen,

It looks to me we have a very good start in formulating “The Plan”. I checked with a SOT and he assured me that the ATF would reject and send back my request and not ignore me. That was a major concern of mine.

I have formulated this proposal based on the requirement that this process not require any law breaking.

The interstate commerce claim is a bonus one if we were to be successful. Ultimately the complete restoration of rights is our goal. I still think we have a good case under US vs. Stewart. I reread it and it seems that one should be able to manufacture a drop in auto sear or something of the sort. Or at least modify or completely create a new selective fire receiver. Kharn suggested starting from a forging in the original filings, which is a good idea.

Jim March hit the nail on the head. We need a great constitutional lawyer. Basically, the constitutional claim is our only claim. We will win or loose on that point alone.

The question of what forms need to be file is a very good one. We need the input of an SOT to clarify this point. I believe it will be a Form 1 or a “Stewart” Form 1. Anybody personally know an SOT in Alabama that would help?

Please ask around and make contacts with knowledgeable people in your circles and post the results.

Graystar
June 13, 2004, 10:09 PM
It looks to me we have a very good start in formulating “The Plan”. I don’t think you have a very good start at all. I’m not sure what you are planning. Are you thinking of writing a letter that simply asks for permission to make the parts? A rejection from the ATF to such a letter won’t help establish anything. The fact that a government agency simply informed you that what you intend is illegal, doesn’t constitute actual harm or controversy. That’s like me walking up to a cop in New York City and asking if I can have a gun, and then raising an action simply because he said “no”. That doesn’t mean a thing.

However, there is some precedent for challenging prohibitive statues when criminal penalties will be imposed if a person acts. Such statues have been found to be proper subjects of actions seeking declaratory and injunctive relief. Just bring an action in federal court seeking a declaratory and injunctive ruling against the laws you feel violate your freedoms.

But no matter what you do, don’t expect a court to accept your interpretation without being able to back it up with a solid argument. Without a fresh new argument as to how these laws are violating your rights, you will be wasting your time.

bamawrx
June 13, 2004, 11:50 PM
Greystar,

True, but the first step of the plan involves forming justiciability. It is important to show standing, rightness, controversy, etc even though there are no administrative options by which I can seek relief. You may find the step unnecessary, but I think the ultimate success of such a case can only be helped by accomplishing these things first.

mrapathy2000
June 14, 2004, 12:14 AM
he could probably get away with a 80% receiver which is not considered a firearm just scrap.

though 0% is more fool proof than 80%.

good luck.

twoblink
June 14, 2004, 12:58 AM
I'd go ahead and PM El Tejon... He's a lawyer on the right side of things on THR here..

patentnonsense
June 14, 2004, 02:35 AM
1) Yes, there are lawyers here.

2) I applaud your plan. Be sure you have the resources to carry through with your part of it, but it's worth doing. Judges can only decide cases which come before them - so you're doing a service to all of us when you give a judge the chance to look at unconstitutional firearms laws.

3) Your state RKBA association can be a big help in finding the right lawyer - lots of their board members may be lawyers.

4) Your state RKBA association can also be a big help in obtaining free support for you - I gather that you aren't poor, but the cost of a lawsuit can be large. One resource to think about is volunteer help from students at your local law school - are you in the same city as U.Ala.? Law students are often eager to help on a worthwhile project which gets them some real experience.

5) There have been some odd negative comments in this thread from nonlawyers. Everyone is entitled to an opinion on the Constitution (because it's written to be readable by any literate adult), but not everyone is equally equipped to assess legal tactics.

Godspeed and good luck!

Jim March
June 14, 2004, 03:51 AM
Graystar, you're being both harsh and...well, slightly insulting now. Or at least that's how you're coming across.

The guy is saying more research needs to be done in some areas. Cool. But many of his "core concepts" are a LOT more sane than a lot of stuff we've seen float through here. Heck, one idiot actually built his own full-auto, walked into a police station and demanded the right to challenge the law.

Well he got his chance all right. Moron is still doing time :rolleyes:.

~

Let's talk about Miller and Aymette a sec. Here's Miller's reference to Aymette:

---------------------
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

Miller full case text: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=307&invol=174
---------------------

Here's Aymette:

---------------------
As the object for which the right to keep and bear arms is secured is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them is not, therefore, secured by the constitution.

One source (on a gun-grabber site): http://www.saneguns.org/sources/cases/aymette_v_state.html

Another just in case the grabbers mis-cite: oh dear, I can't find another source handy. It's late, I can't google all night looking. Let's assume for a sec this is right...
---------------------

The TN Supreme Court in Aymette was trying to support a ban on the concealed carry of handguns and big knives. The snippet I've chosen above is one of many supporting the concept of "militia weapons backed by the 2nd Amendment" being "weapons usable in civilized warfare".

See also Denning's article "CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES V. MILLER AND THE SECOND AMENDMENT":

http://www.guncite.com/journals/dencite.html

Unfortunately he mis-spelled "Aymette", so see footnote 52:

----------------
[52] This is a remnant of a time when courts were better able to clearly distinguish between "military" weapons that a militia might use, like a rifle, and nonmilitary weapons, like an easily concealable derringer, which some state courts that decided these issues found could be regulated. For a discussion of the difference, see Amyette v. State, 21 Tenn. 154, 159 (1840) (holding that the legislature has a right to prohibit the wearing of those weapons that are either unfit for "civilized warfare" or incapable of contributing to the common defense). But see Cases v. U.S., 131 F.2d 916, 922 (1st Cir. 1942) (stating that the advent of modern warfare has rendered useless any distinction between "military" and "nonmilitary" weapons).
-----------------

NOTE: a good case can be made that this concept of "militia weapons" has been overturned by the 14th Amendment. But the courts haven't been ready to "go there" yet. In the case of an AR-pattern weapon, it hardly matters, the whole family is clearly an Aymette-approved "weapon of civilized warfare" (if it ain't, the US Military is in DEEP violation of international law every time we shoot one in anger overseas...).

Bamawrx: have you seen this yet?

http://www.equalccw.com/practicalrace.html

It's not directly applicable to what you're up to, but it's a good primer on the whole 14th Amendment issue with links to more data.

Graystar
June 14, 2004, 09:26 AM
Graystar, you're being both harsh and...well, slightly insulting now. Or at least that's how you're coming across. I apologize if that’s how I’m coming across, but I’d hate to see, once again, lots of effort and money go into an endeavor that was DOA from the very start. This was the case with Silveira. Even I could see that it had no chance, and said so several times on this board. As I recall, keepandbeararms.com fundraised and contributed to the case, and now Angel Shamaya doesn’t have any money for a new server that he desperately needs.

I know he’s saying more research needs to be done. The problem is that I can already see that the concept is not viable. From what I read, here is the concept spearheading this effort:
First. In US vs. Miller the Supreme Court denied the unconstitutionality of the 1934 gun control act based on the dubious distinction that a short barreled shotgun had no use in the militia. Never mind the short barreled shotgun predates the rifled bore in combat. The Court will not be able to make the same claim about an AR-15 for obvious reasons. This is absolutely incorrect. There’s nothing obvious about it. California did it, the Ninth Circuit supported it, and the Supreme Court didn’t see a problem with it. The notion that the court “will not be able to make the same claim,” has no basis.

The problem is reliance on this concept of “weapons usable in civilized warfare.” For some reason, you’re simply accepting this concept to mean any weapon that YOU think is usable in civilized warfare. Therein lies the problem. I can almost guarantee that the government will argue that the distinction is made by law, and not by mere appearance or design. Both Miller and Silveira support this concept. Unless you can come up with good arguments as to why this should not be, you will most likely lose.

Vibe
June 14, 2004, 10:30 AM
As for introducing "evidence of weapons usable in civilized warfare" or "of weapons usable by a militia". I would think that a listing of the weapons provided or supplied to foriegn "militias" BY THE US GOVERNMENT (most recently AKs for the Iraqis) would be a fairly incontrovertable start - In fact you might want to change the plan to base it around a "homemade" AK as opposed to an AR. At least until you can find evidence that the USA has supplied M-16s to a foriegn "militia"(Would Iran/Contra count?). This tact could already be used against the "Saturday night special" laws...Have you ever looked closely at the "Liberator" pistol that was distributed to the French? If nothing else you could present "evidence" of what the Army thought were weapons of this sort by listing some of the weapons CONFISCATED in Iraq and Afghanistan...which would include a few multi-thousand dollar Drilling side by sides - as well as more than a few Zip-guns.

patentnonsense
June 14, 2004, 10:42 AM
Graystar said:

Unless you can come up with good arguments as to why this should not be, you will most likely lose.

Graystar, you aren't the judge he has to convince - and I don't think he was asking you for funding, was he?

I think our Alabama friend has a fine idea for protecting our civil rights, though he may not appreciate how big a task he faces. I myself am doing what I can on my own projects. If you have better ideas for protecting RKBA, you should pursue them.

sumpnz
June 14, 2004, 04:24 PM
Subscribing. Even if he does lose good can still come of it. Generally when a court rules against you they give a long winded reason as to why they ruled against you. From that, lessons can be learned and applied to future cases to avoid the pitfalls that sank the previous cases. Also, even if the case goes wholly against us, at least we'll know where we stand on certain issues instead of having to guess about ambiguities.

BowStreetRunner
June 14, 2004, 05:04 PM
good luck with the suit :)
BSR

Jim March
June 14, 2004, 10:12 PM
The US gov't supplied M16s to the Israelis for use in their civilian reserves. Many made their way into the settlement defense "forces" which are CLEARLY a "militia". Our continued support for Israel shows quite conclusively that we consider them "civilized" (and for the record, I for one believe they mostly are, much moreso than Arafat's Hamas barbarians).

Anyways. There's your conclusive "militia use" if need be. The US National Guard being another...it's got some "militia features" but isn't really (it's a standing army more than it is a militia; the Israeli settlement defense forces are much closer to a real 1792-type militia than anything we've formally got now).

Desertdog
June 15, 2004, 12:04 AM
Personally, I would rather see you going after a case of somebody unable to defend themselves physcially, that had used a concealed firearm in self-defense and charged with illegal weapons possession.

Firethorn
June 15, 2004, 01:36 AM
Desertdog, the problem with this is that even in Europe people who do this are very often let off. There's only a few states left that won't issue permits. This is an attack on a different front.

I'd really like to be able to purchase my own M-16. Without the ban, they'd go for about $600. I'd be able to buy my very own weapon, the same as what I will be issued when I deploy to a dangerous location. I know the AR-15 is 'similar', but if I'm going to be spending the money, I'd want the select fire.

In my position, I'm liable to be deployed to dangerous locations, and yet, the military considers giving me firearms training only every two years sufficient. I don't agree, but the way the system is set up now, I can't even buy my own ammo and 'rent' a M-16 for practice.

bamawrx
June 15, 2004, 10:30 PM
A brief update:

I spoke to an SOT today that suggested the Form 1 will be the way to go. I have reviewed the form, and it seems to be the best fit. The form has a blank for the intended use of the firearm. Any ideas of what to put there? Defense of state purhaps?

Also, Alabama has no RKBA association that I can find. I figure we live in a pro2a state that just simply hasn't caused the gun owners to organize. As a result, I don't have a ready made organization to fall on for support. The first step may be to form such an organization, or get help from a neighboring state.

My main issue right now is lack of a constitutional attorney. Anyone have suggestions?

Edited with new info

Bobarino
June 16, 2004, 03:02 PM
for purpose, i'd put "to maintain the security of a free state". that puts you right in line with the second amendment.

Bobby

Foreign Devil
June 16, 2004, 03:51 PM
Why don't you put "for defense of self and the state".

I can't believe there's no right to bear arms group in Alabama.

Art Eatman
June 16, 2004, 05:48 PM
Start with checking out IDPA and IPSC folks. It's the old deal that somebody knows somebody else who's into 2A activism.

Art

bamawrx
June 16, 2004, 07:53 PM
Update:

Contacted every IDPA organization in the State of Alabama today. Also, made contact with attorney that may be able to help. Thanks for ideas and input. Keep your ideas coming.

patentnonsense
June 17, 2004, 06:00 AM
Thanks for updating us -
Isn't there a state affiliate of the NRA? I thought the NRA had an affiliate in every state??

Diggler
June 17, 2004, 06:42 AM
Every time a case like this goes through the legal system it gives us, if nothing else, information on how to better build our case for the next time and may bring to light angles or precedents that hadn't been previously considered.

A tree is cut down one stroke at a time.

bamawrx
June 17, 2004, 10:46 PM
I sent this letter today to a constitutional lawyer in Birmingham, AL. I will let you all know what he says.

Dear Mr. XXX,

I was referred to you by my brother XXX XXX. I asked him for a constitutional lawyer that might be interested in a good old fashion fight. Unfortunately, I need such a lawyer.

I have decided to stop complaining about the governments systematic disarming of the American people, and do something about it. I have formulated a plan that will allow me to form the necessary justiciability to challenge the most restrictive gun control laws on the books without first breaking any laws.

My plan is simple. Send a Form 1, citizenship form, finger print card, and a check for the required $200 to the NFA branch of the ATFE in Washington DC. The forms are for the proposed manufacture of an M-16 style selective fire rifle.

This request will be denied, in part, based on the Gun Owners Protection Act of 1986. I plan to file suit to challenge the constitutionality of the applicable statutes. The "home made" nature of the request is designed to help avoid interstate commerce claims, and the M-16 was selected as it is arguably suitable for use in the "militia" in the defense of the state as defined by our founding fathers. The militia suitability is important as that was the given reason for the failure of US vs. Miller. In that case the court denied the second amendment claim as the firearm in question was a short barreled shotgun, and had no use in the militia. Never mind the fact that the short barreled shotgun predates rifled bores in civilized warfare.

I know this case will take years and require extensive financial resources. I have prepared the necessary funds to start the case, and have commitments from interested parties over the internet to help in fund raising. I have watched countless gun owners send checks to legal defense funds to help defend other gun owners in civil and criminal court. I am persuaded they will stand up and support this case too.

I hope you are interested in such an esoteric endeavor. I have researched this matter extensively, and cannot rest until a court is given the opportunity to hear the evidence. Thanks for your consideration.

Regards,



XXX XXXX

sumpnz
June 18, 2004, 01:32 PM
bama,

A thought for the future. Give us these letters before you send them so that we can make corrections, and suggestions for improvements. I think that if I spent 30 minutes I could have helped make significant improvements in that letter. Maybe not, but everybody I've talked to (my dad, my wife, and numerous high school and college classmates) seems to think I'm pretty good at that.

FWIW.

effengee
June 18, 2004, 03:02 PM
Friends, Brothers-and-Sisters-in-arms, People whom I respect, if for no other reason than the fact that we all agree on our right to keep and bear arms...
I want you all to refer to Mr. Thomas Jefferson, who stated that we should not look upon the constitution in a niggardly (sorry, his words, not mine) fashion. But to harken back to the days of it's formation and the spirit of the debates that brought it about....
OK that's not verbatim, but it means not to read the constitution in a way that destroys an individual's definition of the inherent rights of all citizens in how they, themselves, define the pursuit of happiness or the security of a free state, both personally and collectively.
There was never any want for a standing army nor a governing agency that would hold sway over the citizens.
WE, THE PEOPLE.........
That's us, you and me.
I know it gets frustrating trying to explain your ideas only to have someone dash them when seen in a different light.
However, when you seek the opinions of others, you must first set aside your own pre-conceived ideas so that you can observe theirs in an unbiased manner. It's great that you are doing what you are doing.
Power to you...

Remember that the militia is NOT the military but able bodied male citizens of an age between 16 and 45 to be called upon in times of need and to provide their own arms of warfare and that defines why there is/was a need for all citizens to be allowed to keep and bear arms. Besides the fact that the King didn't allow subjects to keep and bear arms, for many, it was the only means for putting food on the table or money in the pocket.
The term "ARMS" when used in the constitution can only be defined as man-portable weapons that serve as a means of personal defensive/offensive capability and in common use at the time. There are still edged weapons on the modern battlefield. There are always various firearms, both semi and fully automatic. There are still single-shot rifles. There are always explosives. I don't see why we, the people, are being punished for the crimes of others who have no respect or regard for laws.

Freedom fighters and terrorists aren't technically militia either. They fight for their own cause, not in the defense of the State.

What exactly is "civilized warfare"?

What exactly is a "militia weapon"

Although most people would agree that WW2 certainly fits the bill of "civilized warfare" I hardly doubt any of the millions of people slaughtered in the genocide would choose to call it "civilized"
Doesn't anybody read the same history of WW2 I've read where the German soldiers, Arguably some of the best equipped and trained State-sponsored professional soldiers in the world at the time were killed by civillians who were armed with little more than farm implements.
Imagine what these people could have done to stop the slaughter had they not given up their right to life, liberty, and the pursuit of happiness every day by KEEPING and BEARING arms.
They still might have died, but I bet they would have made a difference.
"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."
What is so FREAKING hard to understand?
Why do they always blather on in liberal gibberish about what "we, the poeple" get from the first amendment and then say that "the people" in the second are exclusively those in the militia.
THE RIGHT OF THE PEOPLE and SHALL NOT BE INFRINGED... are the key operative words in this statement...
If that's the case then let it be like other places, where I can go into the State sponsored armory and sign out a fully automatic weapon.

Just dropping my 2 cents worth,
Jim

bamawrx
June 18, 2004, 04:30 PM
sumpnz,

Thanks for the offer and support.

UPDATE:
My bro had lunch with the lawyer yesterday, and I got the chance to speak to him myself this morning about the case. He had some REALLY interesting questions. As it turns out, this guy has been thinking about the 2a, and was interested that my bro referred me to him. My bro had no idea that the lawyer was interested in a 2a case. (side note: my bro is a lawyer in the same city) It sounds like this is just the kind of guy I have been looking for. He was familiar with US vs. Stewart, and we discussed some of that case. We are planning to discuss my case further perhaps as soon as this afternoon. Thanks to all of you gentlemen that gave input and feedback.

I hate avoiding peoples names and such, but stay with me on this. Once the final plan is put together I will be making a formal announcement disclosing my identity, the details of the plan, and how to give your financial support.

I will be asking for each one of you to help me raise the necessary funds. I can get this started with my own money, but I do NOT have the resources to take it the distance. I suspect that the support my comrades show will have a big impact on the lawyer’s decision to take the case or not.

I need good ideas on fund raising from you all. I have plans for a legal defense fund, but I was thinking about offering color brochure for download in pdf format that you all could print on your own computers and pass out at gun stores, matches, ranges, etc. What do you think?

sumpnz
June 18, 2004, 05:06 PM
I need good ideas on fund raising from you all. Talk to Angel Shamaya over at keepandbeararms.com. They poured a bunch of money into the Silveria vs Lockyer case, and have funded other endeavors as well. I'd also look into whether or not the NRA, GOA, JPFO types might be willing to help fund this from their legal coffers. Wouldn't hold my breath on the NRA, but the worst can do at this point is say no (later on they may activly work against you though as they did in Silveria). I'm sure there's others but that what springs to mind.

I'm sure lots of guys here will contribute anywhere from $5-100 if you set up an escrow account for this suit. I'm kinda tapped out right now for discretionary money with upcoming gun purchases (hunting rifle, handgun for my wife for coyote (2 and 4 legged) protection) and other stuff I'll need to go hunting, but I'm sure I can squeeze $20 give or take out of the budget.

The_Antibubba
June 19, 2004, 07:48 AM
I've been following this with great interest, but I don't recall seeing which Court of Appeals you fall under. Is it 5th? Because US v Emerson was Fifth circuit, and the Court gave a very extensive affirmation of the Individual RKBA, in contradiction to Miller v US.

Graystar
June 19, 2004, 12:51 PM
Which circuit are you in? Alabama is in the 11th Circuit.

The_Antibubba
June 20, 2004, 05:41 AM
Sorry if this runs long, but I'm not sure how to say this quickly.

I just started law school, and one of my classes is an overview of the Bill of Rights. We've already covered 2A, which was unsatisfying, because of a view that the last important legal case before the Supreme Court was Miller v US, upon which basis the case in this thread is challenging. Regardless of my personal feelings about RKBA, the wording of the 2A is NOT unequivocably clear, unfortunately.

But the other major impediment seems to be the 14th A, which amends the Constitution, in part, to guarantee the rights of citizens in individual states to the protections guaranteed in the BOR:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"

And this Amendment has been applied to every Amendment in the BOR, EXCEPT the 2A.
The 2A is pointedly excluded because (as I understand it) it's purpose was intend to protect the rights of States FROM the national government, and no one has, since the passage of 14A, challenged the Court to interpret 2A as specifically an INDIVIDUAL right, although the the 5th Circuit opinion in Emerson v US rules just such a thing.

So, for the purposes of establishing a concrete RKBA, is a challenge to Miller v US going to be enough? Doesn't there need to be a challenge to the non-application of 14A to 2A? Or has this been tried, and already failed?

Finally, can a challenge to the laws be based not on an Amendment per se, but upon the whole of the Constitution itself? In the Preamble, among the purposes for the creation of the Constitution is, "...insure domestic Tranquility, provide for the common defense, promote the general welfare..." If we take into account rulings that state that the police cannot be held liable for the non-protection of the citizenry (sorry, I can't cite the cases), and no other provisions for the general Welfare or domestic Tranquility are spelled out, then don't the rights to "life, liberty and the pursuit of happiness" then place the responsibility of those protections back onto the citizens themselves? Or are these covered by Amendments 9 and 10? Is there any part of the Constitution, or other legal documents of the US, that states a right to self-preservation, and, if so, can a legal challenge be made on that basis?


Any Constitutional Law experts who can clarify this for me, please do.

Graystar
June 20, 2004, 07:09 AM
The_Antibubba, the issues you pointed out are exactly why a Second Amendment challenge for personal rights will never work.

First, let me say I am neither a lawyer nor a constitutional law expert. I’m just a person that has a tremendous amount of study on this subject.

Before we get into the Second Amendment, let clear up some other things first. The 14th Amendment is irrelevant in reference to the Bill of Rights. That is because the Bill of Rights is neither privilege nor immunity. In fact, neither is it law. As your law dictionary will tell you, a bill of rights is simply an enumeration of rights; an FYI to an authority reminding it of that over which it has no power.

Our rights simply exist. In U S v. CRUIKSHANK, The Supreme Court clearly explained the relationships between rights and the governments’ obligations:

First, the 14th Amendment doesn’t add anything to the protections we already have.

The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add any thing [92 U.S. 542, 555] to the rights which one citizen has under the Constitution against another. That previous clause being, of course, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Second, Our rights are to be protected by the States.
Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. Third, only when the State fails to protect our rights, will the federal government act.

The only obligation resting upon the United States is to see that the States do not deny the right.

U S v. CRUIKSHANK, 92 U.S. 542 (1875) Before the creation of the 14th Amendment, the federal government had already defended the rights of individuals against infringement by the states. Clearly, this amendment was not needed to extend the protections of our rights against infringement by the state. So, forget about the 14th. It’s not relevant.

Now, lets talk about the Second. You are absolutely correct as to the reason for the Second’s existence. The country had just fought a war against a government gone bad, and the Anti-Federalist wanted guarantees that this would never happen again. The second amendment is all about defense of state, and nothing more. That is why all the challenges that claim a personal right fail.

However, what is lost upon most people is the fact that there exist another right, which I refer to as the right to possess firearms for personal defense. This right was so ubiquitous, that no one ever considered that it might need explicit protection, but it does exist. In fact, the Second Amendment cannot exist without this right as its base. That is because no group can possess greater rights than the individuals that comprise that group. If the group can possess arms for its defense, then each individual must be able to possess arms for personal defense.

This idea of building one right upon another exists in other places as well. The only reason we have the right to a free press is because we have freedom of expression. The right to express doesn’t mean much without a way to convey that expression. As such, the press is protected in order to protect expression. It is a tenet of law that a right that cannot be exercised is no right at all.

The Second Amendment protects a state’s ability. The right is considered satisfied as long as a state has the ability to defend itself. The creation of the National Guard has permanently satisfied this condition. As such, this has created the unfortunate situation where the state now thinks it can deprive citizens of firearms. When this happens, people claim that their Second Amendment right is being violated. This is the crux of the problem. The right being violated is not the Second Amendment, but a yet to be acknowledged right to possess firearms for personal protection. It is the establishment of this right that we should be working on.

BTW, the Miller decision is exactly right.

bamawrx
June 20, 2004, 10:43 AM
UNITED STATES OF AMERICA v. TIMOTHY JOE EMERSON
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, SAN ANGELO DIVISION
46 F. Supp. 2d 598
April 7, 1999, Decided


Opinion by SAM R. CUMMINGS

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 Second Amendment to the United States Constitution. For the reasons stated below, the Court GRANTS Emerson's Motion to Dismiss.


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. 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." 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.

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. 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. 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.

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/emerson.html



GO READ THE WHOLE TEXT AT THE LINK ABOVE.

Graystar
June 20, 2004, 10:51 AM
MUST READ THE TEXTUAL ANALYSIS Yeah yeah...read it many times already.

CAPTAIN MIKE
June 20, 2004, 11:02 AM
I can't remember his name right now...but in Los Angeles, the NRA has an attorney who has been a vigorous champion of 2A rights.

When a couple of other cases were making their way up the chain for possible review by the Supreme Court, he made a strong and brilliant case for the fact that if a weak or bad case comes before the Supreme Court, the damage that could be done as a final pronouncement on our 2A rights could be devastating.

On the other hand, if a case is clearly "on point" -- not about technicalities or manufacture or inport -- but rather based on "personal rights" to own and carry, then that case may be the one we're looking for.

I'd suggest that perhaps a CCW controversy where one state doesn't recognize the CCW permit of another might be just such a case.

Very Respectfully,
CAPTAIN MIKE

Graystar
June 20, 2004, 11:37 AM
I'd suggest that perhaps a CCW controversy where one state doesn't recognize the CCW permit of another might be just such a case. There were several perfect cases here in New York, where simple possession of a gun is banned. Several generally law-abiding citizens defended their lives with unregistered handguns. These cases were perfect because they were as pure as it gets, but as far as I know the NRA never stepped up to the plate.

Vibe
June 20, 2004, 04:02 PM
BTW, the Miller decision is exactly right.

In truth, it wasn't. No evidence should have been required as ALL firearms have certain "use to the Militia" whether they arer "of use" to a standing army or not is/was immaterial. Else why were the calamitous (sp? word?) Liberators dropped in to aid the French? But even were the reasonings of the Miller case valid - ALL of the Assault Weapons legislations would be easily overturned as those weapons "of use" to a standing army are defacto "of use" to any militia. In that the "organised" militia was expected to be familiar with the funtion and use of weapons "in common use at the time". This would include full auto and military specialty weapons - in effect wiping out the National Firearms Act altogether.


And your evaluation of the 2nd is a bit backwards. While the first clause hints at the protection of the state, the main clause is clearly a discription of a right of each individual - as are the rest of the BOR. But in the case of the second it is spelled oout that the defense of the State DEPENDS upon the ability of each individual to have the skills and tools required to defend themselves.

Graystar
June 20, 2004, 07:30 PM
In truth, it wasn't.

And your evaluation of the 2nd is a bit backwards.
It was. It was, because my evaluation is not backwards. My evaluation is not based on the wording of the Second Amendment. It is based on the dabates the Framers had over the wording of the amendment. From those debates it's clear what it was that the amendment was meant to protect.

Like several other of our fundamental rights, the Second Amendment is part right and part obligation. The right to a trial by jury creates an obligation to serve on a jury. The right to have witnesses compelled to testify creates an obligation to testify when called upon. In the same way, the right to keep and bear arms creates an obligation to fight when called upon. That is why a draft is legal.

Early versions of the amendment contained language allowing a conscientious objector to have someone fight in his place. Of course, they soon realized how silly that was. Who in the state will NOT be obligated to fight? There is no one that a conscientious objector could get to fight in his place. The language was dropped.

Goverment passes laws to define and regulate jury duty. It does the same for subpoenas. In the same way, the judiciary recognizes the government's power to define and regulate the right to keep and bear arms.

Vibe
June 21, 2004, 10:04 AM
Early versions of the amendment contained language allowing a conscientious objector to have someone fight in his place. Of course, they soon realized how silly that was. Who in the state will NOT be obligated to fight? There is no one that a conscientious objector could get to fight in his place. The language was dropped.

The language and option may have been left out of the amendment, but not the law. Perhaps it should have been, as the number of "alledged" COs continues to rise. Though most are not true COs - just sheep.

Goverment passes laws to define and regulate jury duty. It does the same for subpoenas. In the same way, the judiciary recognizes the government's power to define and regulate the right to keep and bear arms.
The "duty" of jurors is another area where "government" has attempted ot "over regulate". They would have todays jurors believe that "jury nullification" is illegal - when in fact it is the ROOT of the check and ballance of the judiciary. And IF there were ANY attempt at government's providing education and training in the keeping and use of arms, I might come close to agreeing with you. But since that governmental duty was abrogated long ago - the argument simply does not wash. The "Right to Keep and bear arms in defense of self and community" as all our recognised rights do, exists in and of itself, and did so before and independant of the Constitution. Government was "given" no such power to abridge any of them. Though the men and women who comprise the government DO continue to try. And all too often manage to succeed in the effort.

effengee
June 21, 2004, 10:47 AM
What most people seem to miss here is the undeniable fact that the constitution and the amendments are what came from heated debates and the compromises of many different views.
The basic right of ALL American citizens are Life, Liberty, and the pursuit of happiness... To keep and bear arms was honorable and fashionable.
A man wasn't much of a man if he couldn't defend himself.
To allow a Government, be it State or Federal, to deny any of these basic rights is to disrespect the lives of those who have died defending that document.

I'd rather be a criminal for keeping my arms than to be subject to the ensuing loss of all my inalienable rights...
History, my friends, read it and learn.
Jim

meche
June 23, 2004, 12:53 AM
Hello,
(yes, this is a huge post. sorry about that. I just wrote random stuff in a text file over a couple days as I thought about this)

I've been thinking about the 1986 ban on registration of machine guns (86 ban) for a while. I planned to just lurk around this forum without registering until I could get more involved with RKBA, gun ownership, target shooting, etc., but I saw this thread and had to say something.

I want to post what I've thought about the 86 ban because, hopefully, something that I write might give you an idea that helps the court challenge. I'd hate to see this challenge lose and not have tried to help at all.

I'm just a (naive?) kid that wants to own a machine gun someday... (Something new, not a rusted out 40 year old pos at a 3500% markup.)
Take that into consideration when you read this, many of my ideas/thoughts are probably pretty stupid. All the experience I have is from reading about firearms law on sites like this.

Anyway, just adding ideas can't hurt, right? At least I'll get a quick education on this stuff if I'm really wrong.:D

0)
Before I get going, why has everyone been interpreting previous court cases? If the goal is to repeal the 86 ban, what's the homemade/interstate commerce garbage mean? Especially if the only claim being used is the constitutional one...

"The '86 ban is completely unconstitutional and we demand that it be removed, but we still think that it is important that the select fire AR we ask to make be completely home-made because that Stewart ruling says that the '86 ban only applies to interstate commerce machine guns..."
:confused:
Aren't previous cases supporting this are only a bonus, and not a win/lose thing?

How much does this constitutional law stuff matter if the law takes away from our freedom (we can't do this/that) while preventing no crime and not benefiting society? This is completely contrary to whatever principles most people will claim to have. If they say they want these restrictions even though they will not help anyone, they are practically admitting being power-hungry, wanting to enslave others, etc. I don't know, but it seems like a stupid thing to be caught saying, especially for these politicians. Great way for them to spook the sheep too.

I also think that if you spin the 2A to not uphold the individual right, then you're stating that we don't have a right to free speech/religion/etc. If "the people" really means "the government" in one case, why doesn't it apply in every case?

The constitution alone is the founding document.
Other debates/papers/opinions that the founding fathers had do not matter in this discussion because they have not been written into law like the constitution.
Isn't it "the text of the law" that matters, not the intent?

1)
Is this challenge aimed just at the 86 ban, or the whole NFA system ('34, '68, '86)?

I've always thought that going one piece at a time may work better.
Attacking the 86 ban first, then hitting the '68, then '34 (throw in other national/local legislation on the way)...

I think there's a pretty good chance that we could win a case against just the 86 ban, but I doubt we'd be able to repeal the whole NFA in a single case anytime soon.

Here's a question for those of you that know how courts work; could a case against the whole NFA system end with a partial victory? Something like some restrictions being removed while the main NFA system remains in place, or are court cases "all or nothing"?

In the rest of my post, I'll assume that the case is only against the 86 ban. I just think it's a more reasonable goal for a starting court case, something winnable that'll give us a good start in overturning some of these other firearms laws.
Just referring to "the 86 ban" is also a lot simpler than talking about all the laws at once.

2)
This stuff is in a "how do you think this would work?" format. It may provoke some extra thoughts and responses, and I won't be attacked as readily by people who didn't read the whole post. I'm not a lawyer!

This also has little to do with constitutional law and previous court challenges because no one seems to have brought this stuff up (I'm kinda worried about that...).

-Consider applying to make a antique styled full-auto too (BAR/Thompson/etc). It may be possible to put a "collector"/obsolete design/"more politically correct weapon" spin on the challenge... This would probably defeat your own militia arguments though, I'm not sure, it may be something to look into though.

-Would it help to charge that the 86 ban is unconstitutionally restricting machine gun ownership to the wealthy by artificially inflating prices and limiting ownership to a small pool of firearms? It is effective as a ban, though it is not explicitly written that way. Maybe bring up the idea of wealthy elites having rights that the commoners don't...
"This law restricts the ownership of a entire class of personal arms to wealthy elites, establishing segregated classes of American citizens under the law" (commoners + elites)

-What about bringing up that there has only been 1 real crime with a legal machine gun since 1934, committed by that police officer?
Perhaps emphasize that the 86 ban takes away the ability/right to own machine guns while having no affect on crime.
Was the 86 ban even intended to reduce crime? How could it be, with only 1 crime (1988, 2 years after the ban) since 1934?
A lot of useful arguments could come from the lack of machine gun crime after 1934...
("the NFA is proven to work fine, but the 86 ban is excessive...", etc.)

-Would it sound good to a judge to only challenge the 86 ban in this court case? You could say all kinds of stuff about how hard it is to actually get a machine gun. Emphasize the 3-6 month waiting period, fingerprinting, FBI background check, etc. This would be useful in showing that machine guns wouldn't really become available to everyone after the 86 ban is removed.
This would destroy the "anyone could walk into a hardware store and leave with a evil machine gun if this law is repealed" emotionalism.

-would it help to emphasize that criminals can easily obtain machine guns illegally? Show how easily a criminal can convert/steal/buy/make/etc?
Maybe some research into the source of the few illegal machine guns used in crimes would turn up some arguments. Something like "the North Hollywood bank robbers just walked across the Mexican border with their guns, look at how effective this law is".

-Can you draw the law enforcement community into this? If you can make a good (and realistic) argument that the 86 ban makes it harder for officers to own machine guns, you'll get a lot of sympathy from the judge. Look for sympathetic officers to join w/"class action" status or something...

-Would suggesting that trustworthy, law abiding citizens should be well armed "in these uncertain times" be a good idea?
Well armed, trained and trustworthy American citizens can only be assets to the community and law enforcement, deterrent against terrorists and such...

-Something to look into, is it easier for the average law abiding citizen to get a legal machine gun or join the police and make arrests? Nothing against police, look at pilots, military, doctors, bus drivers, power plant operators, etc. You might find something out of line somewhere. This might not be a good argument to use in court, it would probably depend on the judge's stance on these things...
"You get a more thorough background check if you try to buy a machine gun than you do if you try to join the police/fbi/cia."
"It's easier and faster to become a cop and gain the authority and power of a badge than it is to purchase a legal machine gun."

-Only a law abiding citizen would even attempt to use the legal system (removal of 86 ban) to make/own a machine gun. Maybe arguing that it only prevents law abiding citizens from owning machine guns (artificial price increases), while Joe criminal can easily make his own or import it with his drugs.

-Useless law that only takes away rights, while not preventing any crime.

3)
I've read somewhere that there are about 120,000 legal civilian machine guns in the US. If a "10-20 dollar donation for every machine gun you own" campaign got distributed fairly well, you might be able to raise a lot of money. (Of course, a couple owners are probably just greedy sob's, and will attempt to protect their investments by fighting against the court challenge).

A "10 dollars for every EBR you own" campaign might work out too...
I can't see why a EBR owner wouldn't want to shoot a full auto once in his/her lifetime, or get the select fire upgrade.
The select fire upgrade doesn't seem like a bad idea if the $200 tax, LEO permission, background checks and registration get repealed. (I still think small steps would work out better, hit the 86 first, then 68...). I bet a lot of shooters would apply for the select fire upgrade if it became legal, even with the tax and registration.

Would Dillon or any big reloading companies donate? Ammo manufacturers? Ammo distributors? I'm sure they'd all love to see more civilian machine guns, it would be great for their businesses.

4)
Would it be possible to get a large group of police to support the court case? I remember that a major police group somewhere, something like a "Fraternal Order of Police" opposed the ballistic fingerprinting schemes.
If you could get a large police organization or two to publicly announce support for the repeal of the 86 ban, it would be really tough for the anti's to win.

It would be even better if a pro-RKBA police organization would throw in and join the court case, some sort of "class action"(?) thing...
The help of a couple local officers/sheriffs could be a big help, either by talking to the judges or by joining the case.
Maybe you could find a couple high-ranking officers in the military to help too.

Personally, I don't know if it would be possible to get the help of large police groups like this, but I don't see any reason why you can't.
It would probably be a problem for any organization to donate money or legal support, but even having the leaders write letters to the judges and large newspapers would help a lot. We could buy stamps/paper/pens for them if they need it.

I imagine that a press release from a police organization could snowball pretty well. Just something like a couple letters and telephone calls of "We, the <police org name> support the effort to repeal the 86 ban..."

I'm sure that some people here at THR have pretty good political/police/military connections that could help.

Look around for police (and other) organizations that might help the case.

Still, I'm just a naive kid... Wouldn't happen, right?

-Don't arouse any anti-RKBA police groups though... Need to somehow make sure that a group would help out or remain neutral before you ask them to publicly support something...


5)
Can the anti's screw the court case somehow? Donating to the opposition lawyers when you're in court? How's that work?
Somehow cutting off anti interference before the case starts would be a good idea.

6)
Everyone here at THR should be trying to help out!
Heck, a "legally carried guns confiscated" post has gotten more attention, even when it was resolved in our favor. We need to get people's attention on "going offensive"...
Don't bash bamawrx for a "incorrect" interpretation of a court case. Offer suggestions, ideas and help if you're able. The worst that will happen is that he (and his lawyers) will reject the idea.

Even if you don't want a machine gun, repealing some laws would slow the advance of AWB-2 (the complete semi-auto ban), right?

7)
Would it be best to make this case a huge public issue, or run it in "stealth mode"?

It'll definitely educate a lot of the fence sitters if it's public.
"I thought machine-guns just became legal with this sunset. Why did these guys start this court challenge?"


------------------------

I'll admit, I got pretty excited when I saw this thread, the 86 ban and AWB currently bother me a lot. A court challenge like this also seems to be the most realistic way to remove gun control laws.
I'm aware that the challenge probably won't make any progress, but I really hope it does.

I'd guess that the best way to make progress would be to pull in a big police organization, even just by having them announce that they support/appreciate the movement to repeal the 86 ban.



Whatever happens, good luck with the challenge. I wish I could really contribute somehow. Unfortunately, I won't be able to for a while.:(

Graystar
June 23, 2004, 11:38 AM
Before I get going, why has everyone been interpreting previous court cases? Previous cases set precedence. If you ask a question that was asked before, you should get the same answer that was given before. That insures that everyone is treated equally.

How much does this constitutional law stuff matter if the law takes away from our freedom The problem is that not everyone sees it as taking away our freedom. So you have to go to court to convince a judge that your freedom is being taken away.

I also think that if you spin the 2A to not uphold the individual right, then you're stating that we don't have a right to free speech/religion/etc. Each right protects something different. The question of how the Second Amendment will be ultimately interpreted will not affect how other rights are interpreted.

Unfortunately I don’t see any of your ideas working to restore individual firearm rights.

ProGlock
June 23, 2004, 12:30 PM
Here is the basic framework of the plan:

File proper paperwork with ATFE requesting authorization to manufacture a selective fire rifle. More specifically, I would propose the conversion of an AR-15 to selective fire. The request will be denied based on existing law such as the 1986 ban.

I have checked with legal counsel, and I can use this denial as a basis for a federal law suit. My only claim will be a constitutional one, as the request is indeed an unlawful one. The limited nature of the claim reduces the possibility of success.

I am persuaded that in order for my plan to have the best chance of success the following will be required:

First. In US vs. Miller the Supreme Court denied the unconstitutionality of the 1934 gun control act based on the dubious distinction that a short barreled shotgun had no use in the militia. Never mind the short barreled shotgun predates the rifled bore in combat. The Court will not be able to make the same claim about an AR-15 for obvious reasons.

Second. The proposed manufacture is a “home made” project which is important due to the US vs. Stewart case in which the 9th ruled that Congress exceeded its power under the interstate commerce clause in regulating home made firearms. I feel this ruling has merit and should stand.

Third. It is important that we get a decent case not based on a felony trial involving an unsavory character. The individual(s) bringing the suit should be model citizens, clean in appearance, clear on history, and able to put forth a positive image to the press. Not to mention the fact that it would help if the person was a male over the age of 16 and fit for service in a militia.

Fourth. I live in a district that will nearly guarantee that my federal judge will hear the case fully with out negative biases. I have also checked this out with a former federal judicial aid and he assured me of such.

My plan is to put together a legal team and pay out of my own pocket to get this started. I am willing to do what is necessary, and I feel that you gentlemen will rally if the case is promising. I want to do this only once and get it right. Now that you have my basic framework, I would appreciate thoughtful insight into my proposal.

For those who are interested the legal process it could look something like this. First make application and get denied. File law suit in federal court making a constitutional challenge to the applicable codes. Win or loose legal battle in lower court. Appeal (either party) to appellate court and most likely have oral arguments if we won. An appellate court would want to hear oral arguments if the lower court ruled code unconstitutional. Win or loose case at appellate level, and appeal to US Supreme Court. The SC most likely won’t hear the case. The SC is overdue to tackle these issues, so I give us a better than normal chance. If I am successful in my district, but don’t get to the SC then the lawsuit would be simple to file in all of the federal district by you guys.

Greetings sir. I have read this board often however I registered here simply so I could reply to the thread. Plus I figured why not. Plenty of good topics here.

Anyway your idea is very similar to mine I came up with a couple months ago.

Let me know what you (or anyone else thinks).

1. File a form 1 to make a new machine gun. Person filing form 1 MUST reside in either TX, LA, or MS.

2. BATF will reject and send back the appropriate "screw you" notice.

3. File suit in 5th District Court challenging BATF's rejection based on the 5th Circuit of Appeals ruling that the 2nd amendment of the U.S. Constitution specifically applies to individual citizens. The reasoning for the challenge is that although the Feds are entitled to raise revenue in the form of taxes (ie: NFA), they can not turn around and ban one of those methods of revenue generation. Further reasoning is that the word "machinegun" is specifically defined in 26 USC 5645 as being a firearm. (actual link here: http://www4.law.cornell.edu/cgi-bin/htm_hl?DB=uscode26&STEMMER=en&WORDS=machinegun+&COLOUR=Red&STYLE=s&URL=/uscode/26/5845.html#muscat_highlighter_first_match)

4. Based on current definitions of a "machinegun" being a firearm and the 5th's previous ruling in the U.S. v Silveria case (I believe that was the one) that the 2nd amendment applies to all citizens, thus any gun control law infringes upon the 2nd amendment, therefore making such a law unconstitutional.

This is different from your approach because Alabama is NOT in the 5th district. So if you use this method your filer MUST reside in either of the 3 states I mentioned previously.

I was informed that Kent Lomont (www.klomont.com) out of Idaho tried something in an effort to repeal the entire NFA, however I could already see from his case that it was doomed. You're not going to repeal the entire NFA in one fell swoop...not now anyway. We have to whittle away slowly at offending pieces of garbage laws. This example looks to get rid of the 1986 machine gun ban. If successful, we can concentrate on other things, like the 1968 GCA.

One step at a time folks. Thoughts?

Graystar
June 23, 2004, 12:44 PM
3. File suit in 5th District Court challenging BATF's rejection based on the 5th Circuit of Appeals ruling that the 2nd amendment of the U.S. Constitution specifically applies to individual citizens. The 5th Circuit?? The same court that said the 2nd is an individual right, then immediately ruled that the government could infringe it? To me that sounds like a guaranteed loss.

ProGlock
June 23, 2004, 01:05 PM
Please point out the specific case where this ruling was made.

Graystar
June 23, 2004, 01:31 PM
Please point out the specific case where this ruling was made. It's the same ruling that you're referring to, US v. Emerson.

If floors me how willing everyone is to remain ignorant of the final ruling in that case. Emerson LOST! The court ruled that his right can be regulated by the government.

Graystar
June 23, 2004, 01:31 PM
dup...please remove

meche
June 24, 2004, 01:01 AM
Thanks for that info Graystar.

I guess you're right, my ideas were centered more around the idea of a individual court challenge through other means than proving the second is a individual right...

Since nothing matters if they say that the 2nd is not a individual right, that's the only issue to focus on?
Just a personal opinion, but it seems like too much of a "all or nothing" approach to me, too risky, "eggs in one basket" stuff.



What do you think about this site?
http://www.guncite.com/gc2ndpur.html

Some quotes, no idea if they are correct.
http://www.freerepublic.com/forum/a37460c15384f.htm
http://sonsoffreedom.us/1st_amendment_rights.htm

I don't know, but there seems to be a lot of quotes from the founding fathers that support the idea of the 2nd ammendment protecting a individual right.

Does it matter much if they were concerned about states forming armies the day they wrote the 2nd Ammendment?
The founding fathers all support the individual RKBA in their writings and other discussions, the 2nd does say "the people" and a literal reading, using either modern or historic terms/definitions, will support the individual RKBA...

I'd still say that trying to get some police officers or organizations to join/support would help a lot. They may not have much to do with the individual/collective right issue, but they always seem to be regarded with more respect than the average citizen. Is this a reasonable idea?


Maybe THR'ers that know judges in the 11th circuit should try to drag them to the range in the coming months...
Not illegal, is it? I can't imagine a law saying that judges can not own firearms...


edit:
just thought of this after I logged out, adding it as edit instead of posting again...

What about bringing in the state constitutions? Most of them support the individual RKBA if I remember right.
Something like 40 of the 50 states have a "2nd Ammendment" of their own?
I'd need to go and look these up, I don't remember much about them.

Graystar
June 24, 2004, 02:38 AM
Since nothing matters if they say that the 2nd is not a individual right, that's the only issue to focus on? That is absolutely correct. And yes, it is an all-or-nothing issue, just as it’s been with every threat we've faced, in the unending battle to keep our rights.

What do you think about this site? Not much. The problem is not that the Founding Fathers didn’t believe in a right to possess firearms by individuals. They did. The problem is that such right is not the actual right being protected by the Second Amendment. Just before the Revolutionary War broke out, King George III tried to empty the armories to deprive us of our ability to fight. It is because of this act that we have a Second Amendment. It guarantees our ability to fight as a people. In fact, most of the amendments are directly related to grievances against the King.

If you felt that some government action was preventing you from expressing yourself, would you claim that your right to a free press was being violated? Or would you claim your freedom of expression was being violated? The two rights are so closely related that they form a symbiotic relationship. However, there is no question that they are two distinct rights that protect different concepts. But if you claim your right to a free press was being violated, when in fact it was your right to free expression that was being violated, then you would lose in court. Your free expression might very well have been violated, and you might very well had won in court *if* you had presented the case with the proper right, but it is not the court’s job to fix your legal errors.

This is exactly the situation we have today. We have two rights...the right to keep and bear arms, and the right to possess firearms for personal protection. When the government violates our right to possess firearms for personal protection, people are claiming that our right to keep and bear arms is being violated. This is the same legal mistake as in the example above. So the court says that you are wrong...that your second amendment right hasn’t been violated, and the court is correct. The case simply presented the wrong right.

This is why I say that we need to work on establishing the existence of a separate right to possess firearms for personal protection, which is completely independent of the Second Amendment. I believe that there is enough legal precedence to establish one. However it seems like everyone would rather hopelessly cling to the Second Amendment. That’s why we keep losing in court.

DMF
June 24, 2004, 08:54 AM
That is why a draft is legal. The draft has little to do with the Second Amendment. For a clear explanation of the legalities of the draft read Arver v. US, 1918 http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=245&invol=366 This case has been the basis of every legal decision on selective draft law since it was originally handed down in 1918.

Graystar
June 24, 2004, 10:06 AM
From the ruling...
It may not be doubted that the very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need, and the right to compel it. The court didn’t say it the same way that I said it...but the concept is the same. The court can only address what was raised in the complaint. If the Second Amendment wasn’t raised as an issue then they don’t discuss it. However, it is clear that they followed the concept I described.

The_Antibubba
June 24, 2004, 06:54 PM
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Just because it isn't explicitly spelled out in the Constitution doesn't mean you do not have certain rights.

We can debate forever whether 2A refers to States rights v Individual, or Militia v RKBA. But do I have a right to life? Do I have a right to protect my life? These are Rights so fundamental that the Constitution doesn't address them. The founders used the word "militia" because they understood that the men coming in already possessed their own weapons. Ownership was fundamental, and nearly universal. Nobody mentioned individual use of weapons and ownership because it was taken for granted.

Everyone agrees that Murder is wrong, right? But is it wrong because the State has erected laws and penalties against it, or because it is inherently wrong?

Is the right to protect myself and my family a Fundamental right, even if it is not spelled out in an Amendment? Most people would say "Yes". What is happening in Britain now is because no such fundamental right exists; self-defense in England, even against deadly force, is being punished. So it is here, in some places, because there is no Federal recognition of the right to protect oneself.

This narrow challenge of the NFA might succeed, but that does not mean it will greatly advance the RKBA. I propose that a serious challenge be studied on Ninth Amendment grounds. Since legal precedent has established that the Police are not responsible for an individual's safety, and no other body or institution has been given that power, then there is clearly a void in my ability to protect my life.

Thoughts?

Graystar
June 24, 2004, 08:07 PM
Ownership was fundamental, and nearly universal. Nobody mentioned individual use of weapons and ownership because it was taken for granted. YES YES YES! That’s exactly it!

I propose that a serious challenge be studied on Ninth Amendment grounds. I can’t believe it! Someone else that finally sees the problem and solution clearly! I’m not alone anymore!

That’s what I’ve been saying here for a while. We have lost that which was once taken for granted. We must reestablish the existence of this right. I believe there is a good case to be made that this right does indeed exist, and that restrictions on this right have not been serving a compelling state interest. But everyone here wants to be part of the militia and cling on to the Second Amendment like the captain of a sinking ship. I just don’t understand it.

Foreign Devil
June 24, 2004, 08:46 PM
The right to bear arms is mentioned in various places in the historical record as being distinct from militia duties.

The republican party platform of 1856 mentioned it sort of in an off hand way, I was surprised to learn. One of their chief complaints was that this right, among many others had been denied to the people of the territory of Kansas("Bloody Kansas" and all that). Didn't mention the militia - actually the territory wasn't even a state at the time, and the militia hadn't been disarmed in any case. Kind of puts paid to the "state's rights" claim.

It was mentioned in the congressional debates over the 14th amendment. It was also mentioned in a debate over a law disarming former confederate soldiers(can't remember the name at the moment). Someone told me it was mentioned in debates over the passage of the Freedman's Bureau but I don't know how true that is.

But I think these days people see guns as sort of an interest more than anything else or at most they see them as tools for personal self defense.

meche
June 25, 2004, 01:14 AM
This isn't exactly related to setting up a individual RKBA...

If the 2A refers to the individual RKBA, then NFA's are obvious infringements...
If the 2A is a state right, isn't it still infringing on the state's RKBA?
Could it be argued that the NFA's infringe on the state's RBKA?

Something along the lines that if the state has a RKBA, then it is up to the state to govern the use/legalities/"distribution of arms" within the state?

Obviously, the state government counts, but would a citizen of that state be considered part of the state in this sense?
If the citizen of a state counts as part of the state for the state's RKBA, then the NFA's infringe on the RKBA of that state because they restrict what can and can't be done by the state.

Could this be used to remove federal firearms laws, except for the interstate commerce ones?

Or, could the NFA's be challenged without forcing the courts to rule the 2A as state/individual right?

Graystar
June 25, 2004, 02:41 AM
If the 2A refers to the individual RKBA, then NFA's are obvious infringements... Yes but that doesn’t mean as much as you think it does. The government can infringe upon rights when it serves something called a “compelling state interest.” For example, people in jail have their rights violated for the entire time they are in jail (and even after they get out of jail,) but you wouldn’t suggest that we let every convict out of jail, would you? Locking these people up for their crimes serves a compelling state interest...justice to the victim, safety to the people, and rehabilitation to the criminal (whether any of these interest are actually served is another discussion entirely!)

Gun control laws are supposed to serve a compelling state interest by keeping guns out of the hands of criminals. The laws don’t actually work, but the concept sure does sound good to the voting soccer moms, so politicians keep pushing for more.

So when you go to court to fight something like the NFA, you have to be ready to prove that the law violates your rights, and that it doesn’t serve a compelling state interest. And you have to be really well prepared because laws that are on the books carry with them a strong presumption of constitutionality. It’s like going to bat with 2 strikes already against you.

effengee
June 27, 2004, 11:45 PM
What we need to do is remember that the operative words of the 2A are
"the right of the people..."
That's us... NOT the "militia" nor the National Guard. That part of the second amendment provides the people to form State approved armed bands to provide military assistance in times of emergency.
If we are to read the second, in 1778 or 2078 it still means the same thing:
"In order to provide for a civillian defense force to assist the standing military with an ability to draw upon common citizens in a time of dire need,
and to also address the issue of persanl defense weapons, the framers agreed to the second amendment as stated.
So read the rest of the constitution and see what else pertains to the individual rights of "the people"
Then VOTE VOTE VOTE
That's the most powerful way to enforce what "we, the people" want from our government.
The fact remains:
We are responsible for the laws that pass because the majority of any given voting district approves them indirectly through the representatives.
We can all argue till hades freezes over but until you call your local congressman and begin annoying the freakin heck out of him/her with how important the individual right to keep and bear arms is, then all of this bickering is really a moot point.
I would love to own an automatic firearm, I hate the laws so I try to change the laws one letter to the rep's. at a time...
Use the power of the written word.

"Knowledge is power, and knowing is half the battle."

mrapathy2000
June 27, 2004, 11:59 PM
http://www4.law.cornell.edu/uscode/10/311.html
USC title 10>subtitle A> Part 1>chapter 13>sec 311

Sec. 311. - Militia: composition and classes

(a)
The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(The classes of the militia are -
(1)
the organized militia, which consists of the National Guard and the Naval Militia; and
(2)
the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia

sturmruger
June 28, 2004, 11:44 AM
I hope this goes well. Post here when you need funds. I would be willing to send you some money.

BB62
June 28, 2004, 12:26 PM
Somewhat on/somewhat off topic - a long time ago I read a paper about the meaning of "well-regulated" in its time.

The paper cited contemporaneous sources where it was evident that the meaning was not "the subject of numerous rules and restrictions" but rather "properly operating".

Has anyone ever seen such a thing, or have anything to add?

Hats off to Graystar's various interpretations, esp the one stating that the "people" as a whole cannot possess a right without the individual also having that right.

BB62

bamawrx
June 28, 2004, 03:31 PM
FYI:
I have another meeting this week with the lawyer, so I'll be offering an update soon. I appreciate the interest and willingness to help by the many THR members.

Dionysusigma
July 5, 2004, 01:23 AM
btt/subscribe. I just heard about all this and I wanna know what's going on here. :)

fletcher
July 5, 2004, 08:49 PM
btt/subscribe.

Ditto :D




How did the meeting with the lawyer go? I'm sure I'm not the only one dying to hear :p

Graystar
July 5, 2004, 10:26 PM
Somewhat on/somewhat off topic - a long time ago I read a paper about the meaning of "well-regulated" in its time.

The paper cited contemporaneous sources where it was evident that the meaning was not "the subject of numerous rules and restrictions" but rather "properly operating".

Has anyone ever seen such a thing, or have anything to add?1. I've never heard that,
2. It makes sense, and
3. It doesn't make any difference. The way government makes something operate (properly or not) is by legislating.

Guys here love to post various definition of "militia." But there is one part of the definition of militia that is never posted. A militia, by definition, is a force under government direction. It is not now, nor has it ever been considered a stand-alone force operating under its own authority.

The Bill of Rights was written because the states feared a powerful federal government. The states wanted the viability of their militia insured. To that end, the Second Amendment was written. The Second was never meant to support the concept of independent groups of men, roaming the countryside, “patrolling” on their own volition.

The militia is under state control, and the state passes laws to control it. That's the way it's always been.
Hats off to Graystar's various interpretations, Thanks! I'm glad someone appreciates them :D

Vibe
July 5, 2004, 10:50 PM
The Second was never meant to support the concept of independent groups of men, roaming the countryside, “patrolling” on their own volition.

The militia is under state control, and the state passes laws to control it. That's the way it's always been.
This is true to a point. The purpose of the Second was that there always be a pool of men (the general population) trained in the use of arms, from which to draw from, in the formation of an organized Militia. The Unorganized Militia was NEVER under State or Federal control and WAS free to defend themselves and their community - but true - it was not to provide for the formation of roving mobs.

Graystar
July 5, 2004, 11:24 PM
The Unorganized Militia was NEVER under State or Federal control I do not believe that is correct. For example, in 1774 after British troops seized ammunition belonging to Massachusetts, the colony created the Committee of Safety, which was to decide when the militia was to be called forth. So even in the Revolutionary War the militia was under state control (although the state was a colony at the time.)

BTW it was the seizing of arms and ammunition by British troops that led to the Second Amendment.

Clean97GTI
July 6, 2004, 02:13 AM
here is an interesting take on the 2nd Ammendment.

http://home.att.net/~superspy/translat.htm

hope it helps a bit.

Graystar
July 6, 2004, 02:54 AM
here is an interesting take on the 2nd Ammendment. First he tries to explain how "well regulated" doesn't mean "legislated," then he uses the Militia Act in support of his claim :rolleyes:

Same ol' reductio ad adsurdum that is usually preached and accepted as gospel because it's what the choir wants to hear. But it’s historically wrong and legally wrong. As long as the community continues to follow this nonsense we will continue to lose in court.

Vibe
July 6, 2004, 09:24 AM
For example, in 1774 after British troops seized ammunition belonging to Massachusetts, the colony created the Committee of Safety, which was to decide when the militia was to be called forth. So even in the Revolutionary War the militia was under state control (although the state was a colony at the time.)

All this is true for the ORGANIZED (or called forth) Militia. However in the debates of the time the concept of "the ENTIRE population" being armed refered to the UNORGANIZED militia or all males between the ages of 17 and 45 (I think it was, but this has varied). In fact this was to be one of the safeguards against a tyranical ruler in control of the/a standing army as it would be foolhardy for such to direct the forces of a standing army (which was to never exceed 1/10 of the armed populace) against a population trained in the use of arms. As I rememebr reading it this was for protection against government abuse at ALL levels. So even the State could not be expected to "call forth" the Militia with the purpose of defeating the freedoms of the remaining population. The POWER was to remain with the PEOPLE not the government...at ANY level.

Graystar
July 6, 2004, 09:49 AM
All this is true for the ORGANIZED (or called forth) Militia. You're applying modern concepts to history. In 1774/75 there was no distinction between organized and unorganized militia. The various militia acts that were passed in that time require *all* eligible men to sign up and to serve. All were organized, outfitted, and commanded as put forth in law.

BB62
July 6, 2004, 10:05 AM
Graystar said:
"...A militia, by definition, is a force under government direction. It is not now, nor has it ever been considered a stand-alone force operating under its own authority."

Am I to understand that as you read the 2nd Amendment, the right to keep and bear arms exists solely for the sustenance of the "militia" (operating under govt control)?

If so, then are you saying that there is no individual right to keep and bear arms seperate from the need to keep the militia (by whatever definition) ready? What is the militia in today's world? AND, if you are not saying what I stated previously in this paragraph, what in your mind (if anything) guarantees the *individual* right to keep and bear arms?


BB62

Graystar
July 6, 2004, 10:15 AM
if you are not saying what I stated previously in this paragraph, what in your mind (if anything) guarantees the *individual* right to keep and bear arms? I wrote up my view of the individual right earlier in the thread. Go to page 3, third response on the page. That should explain my position, but if it doesn't clear things up just let me know and I'll do my best to clarify.

Vibe
July 6, 2004, 10:26 AM
You're applying modern concepts to history
I do not believe that to be true. And on this point we must agree to disagree. However even should I conceed your point it would indicate that there is (in this day and time) indeed NO MILITIA at all - the relative States having discontinued the practice. Which according to US v Cruikshank (sp) would STILL not impact the Rights under discussion. Only the relative legality (under the Constitution) of the regulations of CERTAIN weapons under the "of use to the Militia" criteria.
But there being no distinction between the various Militias - then ANY weapon from stick to chain gun would be of a type "of use to the Militia" thus making most all firearm regulations bogus even at face value.

Bubbles
July 6, 2004, 12:46 PM
bamawrx - two things.

First, IIRC the "1934 Group" is has been working on this, though I don't know the status of their suit. It may already have been filed and dismissed. You may want to combine your efforts. http://www-2.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/cleo_lawsuit/announcement.txt

Second, I'd wait a bit to see how the Stewart case ends up before filing your case. After Stewart was acquitted of the machine gun charge, the prosecutor filed an appeal "en banc" to the full Ninth Circuit. That request was denied on June 10th of this year. So, the gov't now has 90 days from that date to decide whether or not to file a writ of certiori to the Supreme Court for this case. That deadline is September 8th.

Of course, if the prosecutor does file an appeal there's no guarantee that the USSC will hear it, but at this point I'd wait to see how this plays out.

55645
July 6, 2004, 01:30 PM
Somewhat on/somewhat off topic - a long time ago I read a paper about the meaning of "well-regulated" in its time.

In the 18th century,and much of the 19th cntury, the phrase "well regulated" meant performing as designed, predictable. The Oxford English Dictionary refers to the expression "a well-regulated appetite" . The phrase "well-regulated militia" in the Second Amendment, means refers to a citizenry competent with arms.

bamawrx
July 8, 2004, 03:46 PM
Here is the basic legal issue (problem) being discussed. What harm comes to the person that is prohibited from say manufacturing a selective fire rifle? Why not substitute with a non-selective fire rifle? If the case does not show significant harm, damage, or controversy then the court is not likely to address the issue.

Ieyasu
July 8, 2004, 06:42 PM
Graystar wrote:
That is because the Bill of Rights is neither privilege nor immunity. In fact, neither is it law. As your law dictionary will tell you, a bill of rights is simply an enumeration of rights; an FYI to an authority reminding it of that over which it has no power.

True, a generic 'bill of rights' is not law. However the first ten amendments to the Constitution, which are termed the Bill of Rights, is law. In fact since those amendments are part of the Constitution, the Bill of Rights is also the supreme law of the land, they are not guidlines or simply an 'enumeration of rights.' For example, Amendment I says, "Congress shall make no law..." Amendment VII reads, "In suits at common law, where the value in controversy shall exceed twenty dollars..."

Michigander
July 8, 2004, 08:09 PM
This may be pertinent to parts of the discussion here:

In 1982 the Senate Judiciary Committee Sub-committee on the Constitution, Senate Document 2807 (in part):
That the National Guard is not the 'Militia' referred to in the Second Amendment is even clearer today. Congress had organized the National Guard under its power to 'raise and support armies' and not its power to 'Provide for organizing, arming and disciplining the militia.' The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. 311(a).

Title 32 U.S.C. in July 1918 completely altered the definition of the militia and its service, who controls it and what it is. The difference between the National Guard and Regular Army was swept away, and became a personnel pay folder classification only, thus nationalizing the entire National Guard into the Regular Standing Armies of the United States.

Michigander
July 8, 2004, 09:04 PM
I spoke to an SOT today that suggested the Form 1 will be the way to go. I have reviewed the form, and it seems to be the best fit. The form has a blank for the intended use of the firearm. Any ideas of what to put there? Defense of state purhaps?
If I were defending the ATFE and caught wind of this whole thread, could I argue that you never had an "intended use for the firearm" because it was apparent that you had no reasonable belief that you would be allowed to manufacture said firearm, hence no "real" intended use, and therefore you committed perjury when you signed your name on the form?

(just trying to cover all bases)

Graystar
July 8, 2004, 09:09 PM
they are not guidlines or simply an 'enumeration of rights.' Yeah, they are.
Amendment I says, "Congress shall make no law..." Right. That's exactly what a bill of rights means.
Amendment VII reads, "In suits at common law, where the value in controversy shall exceed twenty dollars..." And what comes next? "the right of trial by jury shall be preserved,..." Acting, once again, as an FYI to government.

What you don’t understand is that it is extraordinarily dangerous to say that the Bill of Rights is law. If our rights are only preserved through law, then our rights can be taken away by amending the laws that preserve them. Our rights are not created or granted by law. They exist simply because we exist

Ieyasu
July 8, 2004, 10:36 PM
And what comes next? "the right of trial by jury shall be preserved,..." Acting, once again, as an FYI to government.

Incorrect. It's not FYI only. The 7th Amendment states that "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved..." There is a specific dollar amount given. That isn't a guideline, it's a specific amount and is the supreme law of the land.


Amendment I says, "Congress shall make no law..." Right. That's exactly what a bill of rights means.

Not at all. The expression of a certain right, doesn't necessarily forbid the congress from passing a law with respect to that right, but with the first amendment it is specifically prohibited. As an example, the Fourth Amendment doesn't by itself preclude the congress from passing reasonable search and seizure laws.

Graystar
July 8, 2004, 10:46 PM
As an example, the Fourth Amendment doesn't by itself preclude the congress from passing reasonable search and seizure laws. Well if the search is reasonable, then it doesn't violate our right, does it. :rolleyes:

Ieyasu
July 8, 2004, 10:51 PM
Well if the search is reasonable, then it doesn't violate our right, does it.

That's right, but it doesn't preclude congress from passing a law with respect to that right as the first amendment specifically does.

Do you acknowledge that the Bill of Rights is a part of the Constitution?

Ieyasu
July 8, 2004, 11:00 PM
What you don’t understand is that it is extraordinarily dangerous to say that the Bill of Rights is law. If our rights are only preserved through law, then our rights can be taken away by amending the laws that preserve them. Our rights are not created or granted by law. They exist simply because we exist

This is a mis-statement of my position. I am not claiming that "our rights are ONLY preserved through law." Some of the Founders wanted those 10 Amendments added as an "extra precaution." Nor am I claiming that because the Bill of Rights is law, that our rights are created or granted by that law. Rather, those 10 Amendments were meant to preserve and guarantee.

Calling them guidelines is far worse. When most people hear that, they will mistakenly assume that they don't need to be followed to the letter. In fact, that is how I see many people these days treating the Bill. As guidelines, that don't need to be followed. Surely, you don't mean that when you are referring to them as guidelines, correct?

bamawrx
July 8, 2004, 11:34 PM
michigander,

As long as I have a true intended use at the time I sign the Form 1 then I have committed no perjury. The intended use is important in that the courts could argue that the intended use was not consistent with the "militia" and therefore not protected under 2A. The intended use would likely be self defense and defense of State. I too am trying to cover all bases.

Unfortunately, I have bigger legal fish to fry long before filing any forms to the US Treasury.

Another update:

Legal council is considering my justiciability based on amended arguments. I’ll let you all know what he says.

Graystar
July 9, 2004, 01:27 AM
Do you acknowledge that the Bill of Rights is a part of the Constitution?I never said it wasn’t. I only said it wasn’t law.

but it doesn't preclude congress from passing a law with respect to that right as the first amendment specifically does.Here, you are absolutely wrong. It most certainly DOES preclude congress from passing a law that would violate our right against unreasonable searches and seizures.

This is what you do not understand. Even if the Bill of Rights were not added to the Constitution, we would *still* have a right against unreasonable searches and seizures. Congress could *still* pass no law respecting an establishment of religion. That is because these are not laws but principles upon which our republican form of government is based.

When a federal court ruled that Roy Moore violated the First Amendment by erecting the Ten Commandments monument in the rotunda of a state building, there was no federal law involved that had been passed by Congress. Nonetheless, Moore’s actions violated the First Amendment. That is why we cannot strictly abide by the Bill of Rights (in the same way we must strictly abide by law.)

California once tried to say that cops are allowed to compel confessions from suspects, since the Fifth Amendment only applies to the *use* of compelled statements in court. Obviously, the police wanted to submit the confession and leave it up to a jury to decide if it was compelled or not. Luckily for us the courts saw the folly of such a line of reasoning. BUT...if we do as you and Ieyasu believe, and follow the Fifth Amendment to the letter, then the court would have no choice but to allow the cops to compel confessions...just as long as the confessions weren’t used in court. That’s ridiculous! And that is why it is so important that the Bill of Rights be treated the way a bill of rights is supposed to be treated.

Ieyasu
July 9, 2004, 08:31 AM
Here, you are absolutely wrong. It most certainly DOES preclude congress from passing a law that would violate our right against unreasonable searches and seizures.

It's clear you misunderstood what I wrote, but rather than beat that to death, I will take another tact further down...

This is what you do not understand. Even if the Bill of Rights were not added to the Constitution, we would *still* have a right against unreasonable searches and seizures.

Either you wrote your post before you read my last post, or you didn't pay sufficient attention to it. To repeat, I wrote the Bill of Rights was added to the Constitution as an extra-precaution to "preserve and guarantee." I didn't say create. Of course they were pre-existing rights or limitiations on what the federal government could do (for the most part). That doesn't mean it's not law.

Do you acknowledge that the Bill of Rights is a part of the Constitution?
I never said it wasn't. I only said it wasn't law


I never claimed otherwise. I just wanted to make sure you were aware of that fact because from the Constitution itself (Article VI):

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, SHALL BE THE SUPREME L-A-W of the land; and the judges in every state shall be bound thereby, ANYTHING in the Constitution or laws of any State to the contrary notwithstanding."

In other words, whether pre-existing rights or prohibitions on the federal government were pre-existing or understood, is irrelevant. ANYTHING written in the Constitution is law whether you like it or not, whether you think it's good or not, whether you think it's necessary or not.

(I'm going to be away from the computer until later tonight.)

Graystar
July 12, 2004, 07:35 AM
ANYTHING written in the Constitution is law whether you like it or not, whether you think it's good or not, whether you think it's necessary or not. The Judiciary doesn’t view the Bill of Rights that way. There are many laws that appear to fly in the face of certain amendments. Certain types of speech are prohibited (such as “fighting” words) and certain religious practices (such as animal sacrifices.) If the First Amendment were viewed as law, these other laws would be struck down. But because the First Amendment isn’t law, the Judiciary has allowed these other laws to stand. I’m not saying it’s right or wrong...just saying that’s how it is.

ClonaKilty
July 12, 2004, 09:34 AM
Bamawrx: check your PM inbox

Ieyasu
July 12, 2004, 08:44 PM
The Judiciary doesn’t view the Bill of Rights that way. There are many laws that appear to fly in the face of certain amendments. Certain types of speech are prohibited (such as “fighting” words) and certain religious practices (such as animal sacrifices.) If the First Amendment were viewed as law, these other laws would be struck down.

Nope. Using your argument I could replace the Bill of Rights with the Constituion itself! Ie., there are many laws that appear to "fly in the face of the Constiution itself."

Judges give their 'rationales' as to why those laws are Constitutional and why their interpretations are within the bounds of those amendments as they have interpreted them.

But because the First Amendment isn’t law, the Judiciary has allowed these other laws to stand.

Non sequitur. If a judge doesn't 'correctly' interpret an amendment or a law and ignores either one, that doesn't mean it is no longer law. The real problem is the judiciary is not following the rule of law. Again, I refer you to the example above, "Because the Constitution isn't law, the Judiciary has allowed those other laws to stand."

In other words some judges may 'interpret' a law based on their own predelictions rather than the rule of law. That doesn't mean the laws they have failed to 'correctly' interpret aren't laws.

And as I've pointed out to you, the Bill of Rights is the supreme law of the land, it's in the Constiution. How SOME in the judiciary may interpret it is a different issue. The fact is, that it is supposed to be interpreted as law as is anything in the Constitution itself.

Graystar
July 12, 2004, 09:41 PM
Nope. Using your argument I could replace the Bill of Rights with the Constituion itself! Ie., there are many laws that appear to "fly in the face of the Constiution itself." You could try it, but you wouldn't be very successful. That is an entirely different analysis. When determining if a law is within or without the powers of Congress, a careful reading of the Constitution is required as well as understanding of intent and purpose. But an analysis of a law that appears to infringe upon free speech does not require any reference to the Constitution.

Ieyasu
July 12, 2004, 10:16 PM
You could try it, but you wouldn't be very successful. That is an entirely different analysis. When determining if a law is within or without the powers of Congress, a careful reading of the Constitution is required as well as understanding of intent and purpose. But an analysis of a law that appears to infringe upon free speech does not require any reference to the Constitution.

It's the same... "When determining if a law violates the Bill of Rights, a careful reading of the Bill is required, as well as understanding of intent and purpose."

But an analysis of a law that appears to infringe upon free speech does not require any reference to the Constitution.

That's like saying an "analysis of a law that appears to infringe upon a constitutional amendment does not require any reference to the Constitution."

Graystar
July 16, 2004, 05:50 PM
It's the same... "When determining if a law violates the Bill of Rights, a careful reading of the Bill is required, as well as understanding of intent and purpose."

That's like saying an "analysis of a law that appears to infringe upon a constitutional amendment does not require any reference to the Constitution." No it’s not the same. If you have issue with a law that effects the way senators are elected, you have to carefully review the 17th Amendment. If you think a law violates your right to privacy, there’s no need to review the Ninth Amendment. It is a principle of our form of government that we have rights and that the government will defend those rights.

bamawrx
July 16, 2004, 06:07 PM
http://www.law.utk.edu/faculty/2ndamend.PDF

I was sent this in reply to the "states rights" interpretation of the 2a. It is well worth reading, so please do so. If the 2a protects the states, like some on THR propose, the implications of such are indeed radical and not altogether bad.

Ieyasu
July 16, 2004, 07:06 PM
If you have issue with a law that effects the way senators are elected, you have to carefully review the 17th Amendment. If you think a law violates your right to privacy, there’s no need to review the Ninth Amendment. It is a principle of our form of government that we have rights and that the government will defend those rights.

Not quite. The Constitutional right of privacy has developed alongside a statutory right of privacy. The 1st, 4th, and 5th Amendments provide some protection of privacy and is extended through the 14th Amendment. Again, another example of the Constitution and anything in it being the "supreme law of the land" (as expressly stated in the Constitution).

Ieyasu
July 16, 2004, 07:40 PM
bamawrx,

Nowdays, most anti-2A "scholars" have abandoned the "states' rights" interpetation in favor of an individual right's interpretation that is only protected when in the "organized" militia.

Graystar
July 16, 2004, 09:56 PM
Not quite. The Constitutional right of privacy has developed alongside a statutory right of privacy. The 1st, 4th, and 5th Amendments provide some protection of privacy and is extended through the 14th Amendment. In the Roe v. Wade decision the court barely made reference to the Constitution when if found the statutes in question violated the right to privacy.

"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

And that's about it. And this is what I'm trying to say. When it comes to the protection of our rights, principals matter more than what’s written on paper.

The first Amendment starts “Congress shall make no law respecting an establishment of religion…” Does that mean that the executive branch can perform other acts that respect the establishment of religion? No it does not. A drinking law that states persons under 21 cannot consume alcohol will mean that persons 21 and over *can* consume alcohol. However, the same does not hold true for the First Amendment. Just because a specific restriction is enumerated doesn’t disparage other restrictions from existing. This is why the Bill of Rights is treated differently.

When I say the Bill of Rights is not law, it is not because I see them as lesser powers, but because I see them as having greater powers than mere law. Even though the Constitution is the supreme law of the land, it is still subservient to the principles of our form of government. Those principles are embodied in the Bill of Rights.

Ieyasu
July 16, 2004, 11:10 PM
In the Roe v. Wade decision the court barely made reference to the Constitution when if found the statutes in question violated the right to privacy.

It referred to the Constitution to hold a state-law unconstitutional.

From Roe v. Wade:
"The Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution."

In Roe v. Wade, a state law was under consideration, the Court applied the 14th Amendment.

Roe v. Wade does nothing to support your contention that the Bill of Rights is not law.

And this is what I'm trying to say. When it comes to the protection of our rights, principals matter more than what’s written on paper.
That's a completely different claim from the insistence that the Bill of Rights is not law.
When I say the Bill of Rights is not law, it is not because I see them as lesser powers, but because I see them as having greater powers than mere law.
In previous posts you called them guidelines. To most people, guidelines are less restrictive than laws. If you want to view the Bill of Rights as greater powers than mere law, that's fine, however you are wrong to be telling people that the Bill of Rights do not have the force of law. (And just because some judges don't follow the Bill, doesn't mean it's not law either. As I previously mentioned not all judges follow the law.)

Even though the Constitution is the supreme law of the land, it is still subservient to the principles of our form of government. Those principles are embodied in the Bill of Rights.
That may be true, but it doesn't change the fact that the Bill of Rights must be treated and interpreted as law.

You are trying to say that what distinguishes the Bill of Rights from "regular laws" is that, for the most part, those Amendments cannot be Constitutionally repealed/annulled, which makes them different from "lesser" laws, correct? Ie., the Bill of Rights is a "higher" law. ;)

bamawrx
July 27, 2004, 10:33 PM
I heard from a very prominent 2a attorney today about the proposed case. He is too busy to take the case, but referred me to another 2a attorney that regularly does this kind of work. I will make contact soon, and let you all know what happens.

Also, the attorney suggested, in so many words, that it might be better to wait out the US vs Stewart to see how the 9th acts under review. The cases would be very different, but would share the interstate commerce arguments in addition to the 2a and potential equal protection claims.

Vibe
July 28, 2004, 09:39 AM
What's to "wait out"? The 9th ruled that home made machine guns were outside of federal Jurisdiction (so long as they did not cross state lines), and the U.S. Supreme court chose NOT to intervene (at least as it pertained to the discrepancy between the 9th's Stewart and 5th's Emerson cases in the 2A Rights conflict of rulings)

Exactly what pending action are we supposed to be waiting on? Becasue I wasn't aware of any.

bamawrx
July 28, 2004, 11:13 AM
The government was granted their motion for reconsideration of the decision, and they were also granted a "stay" of the order pending that review. So, right now we have nothing, and the results of the review will be very important.

bamawrx
August 3, 2004, 06:43 PM
Final Update:

I have been asked to not pursue this case by a nationally known and respected 2nd amendment defender. The case would not work, and create a bad precedent. Instead, we should watch carefully the DC cases and a few others to see how they turn out. The national strategy is to create positive precedents with small victories that can be built upon. Going for total victory in one case will not work.

The last thing I would want to do is damage our position. I have decided to spend my time and efforts in researching and correcting Alabama’s CCW laws.

Jim March has agreed to help me with getting the information that is required to see what needs to be done. We are all familiar with his efforts in California, and it turns out that Alabama has some similar problems. I will start a new thread on the Alabama case if needed.

I appreciate everyone’s interest, pm’s, feedback, input, etc

BB62
August 4, 2004, 07:38 AM
Bamawrx,

So that those of us who are not fully "in the know" can get to be, can you spell out what cases we should be keeping our eyes on - IOW, name, what matter is being contested, and in what court?


Thanks,
BB62

Graystar
August 4, 2004, 10:49 AM
The case would not work, and create a bad precedent. Told ya.

Henry Bowman
August 4, 2004, 11:30 AM
Hang in there, Bama. Don't get discouraged because every at-bat isn't a home run. Sometimes you don't even get up to bat. Sounds like you have have a new target for your energy and effort.

voilsb
August 4, 2004, 06:48 PM
Originally posted by bamawrx:
I have been asked to not pursue this case by a nationally known and respected 2nd amendment defender. The case would not work, and create a bad precedent.Did he say why it wouldn't work?

Jim March
August 4, 2004, 09:10 PM
First, it wasn't me that advised "no", although I can see much merit to his advisor's position.

The advisor is somebody known and respected by both Bamawrx and myself. More need not be said on that point.

Third, Bama and I discussed by phone digging into the remaining traces of Alabama's "may issue" CCW past. These involve pretty apparant due process problems and *possibly* equal protection issues.

None of THIS is in any way hazardous to 2nd Amendment case law :).

Bama, I'll have that research done on Alabama's version of the FOIA later tonight :).

Meanwhile, I came across a law review article that shows why WashDC is the most likely next battleground on "pure RKBA arguments":

-------------

Catholic University Law Review

Winter, 2004

53 Cath. U.L. Rev. 577

LENGTH: 11833 words

COMMENT: D.C. As a Breeding Ground for the Next Second Amendment Test
Case: The Conflict within the U.S. Attorney's Office

Margaret E. Sprunger +

+ J.D. Candidate, May 2004, The Catholic University of America, Columbus
School of Law.

SUMMARY:
... Since the confirmation of John Ashcroft as Attorney General,
statements like the one above and positions taken by Solicitor General Ted
Olson have spurred multiple challenges to laws restricting an individual's
right to carry a firearm, claiming that they violate the Second Amendment.
... In interpreting Miller, however, the Cases court adopted the
proposition that the Second Amendment only addresses the types of weapons
that may be possessed; specifically, it noted that the possession of those
weapons that reasonably relate to the preservation of a well-regulated
militia may avoid regulation by the federal government. ... This analysis
led the Fifth Circuit to conclude that: 1) Miller does not support a
collective rights model; 2) the text of the Second Amendment does not
suggest a collective rights model; and 3) no historical evidence supports
the argument that the Second Amendment was intended only to convey militia
powers to the states; therefore, the Second Amendment was meant to protect
the rights of individual Americans. ... For example, in 2001, legal
scholars believed that Emerson would provide "the catalyst that forces a
final answer to the question of whether or not there is an individual
right to own a firearm." ... Consequently, the line between an individual
right subject to reasonable restrictions and a collective right subject to
a reasonable relation to a militia becomes blurred. ...

TEXT:

[*577] Let me state unequivocally my view that the text and the original
intent of the Second Amendment clearly protect the right of individuals to
keep and bear firearms. n1


Since the confirmation of John Ashcroft as Attorney General, statements
like the one above and positions taken by Solicitor General Ted Olson have
spurred multiple challenges to laws restricting an individual's right to
carry a firearm, claiming that they violate the Second Amendment. n2 The
current Administration's dramatic policy shift from that of the prior
Administration has re-armed advocates of individual rights who otherwise
have been fighting a losing battle outside the arena of academia. n3
Particularly in the District of Columbia (D.C.), the threat [*578] of
judicial warfare over the Second Amendment has convinced some legal
commentators that a successful constitutional challenge to the D.C. Code
may soon be near. n4

With more than thirty motions to dismiss weapons charges filed in the D.C.
Superior Court since early June 2002, D.C. has become a breeding ground
for what may be the next Second Amendment test case. n5 Constitutional
scholars find D.C. laws susceptible to challenge for three reasons: 1) the
statutes restrict handgun ownership to law enforcement officials only; 2)
Fourteenth Amendment incorporation is inapplicable to issues in D.C. and
3) there is conflict between the Attorney General's statements and the
D.C. Assistant U.S. Attorney's prosecution of weapons offenses. n6 As of
now, D.C. Superior Court judges have denied [*579] these motions to
dismiss, citing binding precedent from the D.C. Court of Appeals. n7
However, some of these defendants have filed appeals with the appellate
court, and some scholars speculate that those defendants intend to have
their cases heard by the High Court. n8

This goal may prove to be unattainable, however, because the U.S. Supreme
Court has refused to address the Second Amendment issue since its 1939
decision, United States v. Miller. n9 In Miller--a case inconsistently
interpreted by circuit courts and legal scholars alike--the Court held
only that a "'shotgun having a barrel of less than eighteen inches in
length'" had no "reasonable relationship to the preservation or efficiency
of a well regulated militia," and therefore, the right to keep and bear
such an instrument was not guaranteed by the Second Amendment. n10 More
recently, Second Amendment scholars on both sides of the issue were
surprised by the Supreme Court's denial of certiorari in a case that had
the potential to settle the individual versus collective rights debate.
n11

In United States v. Emerson, the Fifth Circuit became the first circuit to
embrace the individual rights view--a view that previously thrived only in
academic circles. n12 With Emerson controlling in the Fifth Circuit, and a
split existing between the Fifth Circuit and all other circuits, the
Supreme Court's denial of certiorari poses more interesting questions to
[*580] Second Amendment scholars. n13 What rationale lies behind the
Supreme Court's sixty years of silence? n14 What factors must the ideal
Second Amendment test case possess in order to be heard? n15 Or perhaps
most importantly, what is the likelihood that the Supreme Court will ever
decide whether the Second Amendment grants an individual or a collective
right? n16

This Comment attempts to answer those questions. It begins with a review
of the judicial interpretations of the Second Amendment presented by the
Supreme Court, the circuit courts, and the D.C. Court of Appeals. Next,
this Comment explains the positions of the Attorney General and the
Solicitor General, and compares them to the arguments made by both the
government (D.C. U.S. Attorney's Office) and the defendants in some of the
challenges now pending in the D.C. Superior Court and the D.C. Court of
Appeals. Finally, this Comment explores the possibility that one of these
challenges will reach the High Court and explains the unlikelihood of such
an outcome.

[*581] I. BACKGROUND n17

The Second Amendment states: "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." n18 Although the Second Amendment has not
been repealed or changed in the more than two centuries since its
adoption, and although constitutional scholars have vastly ignored it,
within the past few decades it has become a hotly-contested issue amidst
legal scholars, politicians, other public figures, and now, members of the
judiciary. n19

Students of Second Amendment jurisprudence are identified as either
"individual rights" proponents or "collective rights" advocates--titles
that emerged after a William and Mary Law School student promulgated the
"individual rights" view in a 1960s law review article. n20 As common
sense dictates, the individual rights view interprets the Second Amendment
as guaranteeing individuals the right to bear arms for any legal purpose.
n21 The collective rights view, on the other hand, arguably divides into
two smaller factions. n22 Adopters of the "states rights" view believe
that the Second Amendment "merely" recognizes the right of a state to arm
its militia; proponents of the "sophisticated collective rights model"
recognize an individual right, but they believe that right may "only be
exercised by members of a functioning, organized state militia [*582]
who bear the arms while and as a part of actively participating in the
organized militia's activities." n23

Both sides largely depend on a textual analysis of the Amendment. n24
Individual-rights textualists interpret the Second Amendment's use of
"people" consistently with its use in the First and Fourth Amendments
which refer to individual Americans. n25 Collective-rights theorists
arguably interpret "people," as used in the Second Amendment, as referring
to "States respectively." n26 "Bear Arms" is interpreted by collective
rights models as pertaining only to members of the militia carrying
weapons during militia service; alternatively, the individual rights
followers interpret it as a civilian's carrying of arms. n27 The greatest
textual disagreement between the two sides, however, concerns the
interpretation of the preamble. n28

Individual rights theorists interpret the militia clause broadly, arguing
that it refers to "the people generally possessed of arms which they knew
how to use, rather than to refer to some formal military group separate
and distinct from the people at large." n29 Collective rights proponents,
on the other hand, interpret "militia" consistently with its use in
Article I, Section 8 and Article II, Section 2 of the Constitution. n30
They further posit that the Militia Clause is not the justification for
the right to bear arms, but that the clause makes that right operative; as
one writer stated, "the existence of the right is dependent on the
existence of a militia." n31

[*583] In addition to textual considerations, analysts also rely on
historical context or their interpretations of the Framers' intent. n32
Both sides generally acknowledge that the Constitution's protection of the
militia was the Anti-Federalists' response to fears that the federal
government would use its standing army to oppress the American people. n33
However, individual rights advocates argue that a review of the
legislative history of the ratification of the Second Amendment and
newspaper articles and personal letters written at the time illustrate
that:

The Second Amendment's preamble represents a successful attempt, by the
Federalists, to further pacify moderate Anti-Federalists without actually
conceding any additional ground, i.e. without limiting the power of the
federal government to maintain a standing army or increasing the power of
the states over the militia . . . . [There is] no historical evidence that
the Second Amendment was intended to convey militia powers to the states,
limit the federal government's power to maintain a standing army, or
applies only to members of a select militia while on active duty. n34

The collective-rights theorists contend, however, that "given the
ratification context from which these clauses came, it should be
noncontroversial that the proposal did not embody a right to the private,
non-militia possession of arms." n35 Although these textual and historical
arguments were largely proliferated in law review articles, they or their
presence has recently been noted in judicial opinions. n36

[*584] II. JUDICIAL INTERPRETATION OF THE SECOND AMENDMENT

A. The Supreme Court's Approach and Why It Has Caused So Much Confusion

1. The Stepping-Stone for Debate: United States v. Miller n37

It is generally accepted that Miller is the only twentieth century case in
which the Supreme Court directly addressed the Second Amendment. n38
Miller came before the Court as a challenge to Jack Miller's indictment
for "unlawfully, knowingly, willfully, and feloniously transporting in
interstate commerce . . . a double barrel 12-gauge Stevens shotgun having
a barrel less than 18 inches in length" in violation of the National
Firearms Act (the Act). n39 The District Court of Kansas held that Section
11 of the Act violated the Second Amendment. n40 The Supreme Court
reversed, stating:

In the absence of any evidence tending to show that possession or use of a
"shotgun having a barrel of less than eighteen inches in length" at this
time has some reasonable relationship to the preservation or efficiency of
a well regulated militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an instrument. Certainly it is
not within judicial notice that this weapon is any part of the ordinary
military equipment or that its use could contribute to the common defense.
n41

In its analysis, the Court began by exploring the Framers' purpose for
including the militia clause in the Second Amendment. n42 Addressing
Article I, Section 8 of the Constitution, which grants to Congress the
[*585] power to call forth the militia, the Court stated: "With obvious
purpose to assure the continuation and render possible the effectiveness
of such forces the declaration and guarantee of the Second Amendment were
made. It must be interpreted and applied with that end in view." n43 This
seemingly straightforward language has resulted in differing
interpretations among the lower courts, begging the question of whether
the Supreme Court will address the Second Amendment issue in the near
future. n44

2. A Prediction for the Future: Printz v. United States n45

Some legal commentators have argued that the Second Amendment was
addressed by the Supreme Court in Printz v. United States. n46 In Printz,
the Court held that part of the Brady Handgun Violence Prevention Act
(Brady Act) was unconstitutional because it forced state and local law
enforcement officers to perform an essentially federal function, federal
background checks on handgun purchasers. n47 Although the Court based its
decision on the Commerce Clause and did not significantly address the
Second Amendment issue, Justice Thomas' concurring opinion suggested that
a grant of certiorari to a Second Amendment case may not be far off. n48
He stated:

The Second Amendment similarly appears to contain an express limitation on
the Government's authority . . . . 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
Amendment's protections . . . . Perhaps, at some future date, this Court
will have the opportunity to determine whether Justice Story was correct
when he wrote that [*586] the right to bear arms "has justly been
considered, as the palladium of the liberties of a republic." n49

Perhaps this statement by Justice Thomas was unnecessary in the context of
the case in which it was written; nonetheless, it illustrates at least one
Justice's view that Miller was not dispositive on the Second Amendment
issue. n50

B. Within the Circuits--The Trickle-Down Effect

1. The First Circuit's Interpretation: Cases v. United States n51

In Cases, the defendant appealed his conviction by the District Court of
the United States for Puerto Rico for transporting and receiving a firearm
with ammunition. n52 The defendant alleged that the Federal Firearms Act
was an unconstitutional violation of his right to bear arms. n53 The First
Circuit Court of Appeals affirmed the conviction, finding no violation of
the defendant's constitutional rights. n54 In regard to the Second
Amendment, the court stated:

The right to keep and bear arms is not a right conferred upon the people
by the federal constitution. Whatever rights in this respect the people
may have depend upon local legislation; the only function of the Second
Amendment being to prevent the federal government and the federal
government only from infringing that right. n55

In interpreting Miller, however, the Cases court adopted the proposition
that the Second Amendment only addresses the types of weapons that may be
possessed; specifically, it noted that the possession of those weapons
that reasonably relate to the preservation of a well-regulated militia may
avoid regulation by the federal government. n56 Yet, the Cases court
quickly pointed out its belief that, in Miller, the Supreme Court was
[*587] not delineating a fail-safe rule to apply in all Second Amendment
cases, but instead merely addressed the specific facts of that case. n57
The Cases court further stated that such a rule may have already become
outdated, even though only three and a half years had passed between
Miller and Cases, because of advancements in lethal weaponry and the
frequency of certain "Commando Units" in employing such weaponry. n58
Thus, the Cases court suggested a more flexible interpretation of Miller,
advocating for case-by-case determination of what constitutes a valid
restriction under the Second Amendment. n59

2. Clarifying the Militia-Relationship Requirement: United States v. Tot
n60

Like the First Circuit, the Third Circuit in United States v. Tot
acknowledged that the Second Amendment was adopted to protect the states'
rights to organize and maintain militias. n61 The defendant in Tot was
convicted under the Federal Firearms Act when law enforcement found a .32
caliber Colt automatic pistol during his arrest and their search of his
home. n62 The defendant contended that the statute was unconstitutional as
applied to that type of weapon. n63 In response, the [*588] court
summarized its interpretation of the common law view on the right to bear
weapons and of the Framers' intent for including the Second Amendment in
the Constitution. n64 The Third Circuit then found that the defendant
failed to show that his possession of the pistol bore any reasonable
relationship to the "preservation or efficiency of a well regulated
militia," as required by Miller. n65 The Third Circuit then affirmed Tot's
conviction, stating that "the contention of the appellant in this case
could, we think, be denied without more under the authority of United
States v. Miller." n66 The court also noted that restricting mental
patients, young children, and criminals from possessing weapons was
reasonable.

(continued)

Jim March
August 4, 2004, 09:12 PM
3. The Fourth and Eighth Circuits Fall in Line: Love v. Pepersack n67 and
United States v. Hale n68

The Fourth Circuit adopted the militia-relationship requirement in Love v.
Pepersack. n69 April Love brought a civil suit against members of the
Maryland State Police Department because it denied her application to
purchase a handgun based upon her having a record of prior arrests. n70
[*589] Love argued that Maryland infringed her constitutional right to
keep and bear a handgun, but the Fourth Circuit Court of Appeals
disagreed. n71 The court stated, "even as against federal regulation, the
amendment does not confer an absolute individual right to bear any type of
firearm." n72 Interpreting the Miller decision as requiring that the
possessor bear some relationship to a well-regulated militia, the court
held that Love failed to prove how her possession of a handgun would
"preserve or insure the effectiveness of the militia." n73

The Eighth Circuit followed suit, adopting the militia requirement in
United States v. Hale. n74 Convicted on thirteen counts of possession of a
machine gun and three counts of possession of unregistered firearms,
Wilbur Hale appealed on the grounds that his indictment violated his
Second Amendment rights. n75 Relying on the "type of weapon"
interpretation of Miller, Hale argued that the types of weapons seized
from him were common to military use, and thus related to a well-regulated
militia. n76 The court disagreed, stating that it could not "conclude that
the Second Amendment protects the individual possession of military
weapons." n77 Elaborating on its interpretation of [*590] Miller, the
court stated, "Miller simply 'did not hold . . . that the Second Amendment
is an absolute prohibition against all regulation of the manufacture,
transfer and possession of any instrument capable of being used in
military action.'" n78 By adopting the individual case approach set forth
in Cases, the court concluded that Hale's possession of the weapons was
not reasonably related to preservation of a militia. n79 Finally, the
court noted that there was no need, in this case, to determine, as the
defendant argued, whether the Second Amendment grants an individual or a
collective right. n80

4. The Sixth Circuit's Strict Definition of "Militia" in United States v.
Warin n81

United States v. Warin reflects the Sixth Circuit's determination of
whether amendments to the National Firearms Act violated the Second
Amendment. n82 In Warin, the defendant was convicted for knowingly
possessing an unregistered submachine gun. n83 Warin was an active member
of the sedentary militia of Ohio and worked for a company that developed
firearms for the government. n84 The defendant made the [*591] weapon at
issue, which was a type used for military purposes. n85 Warin, therefore,
argued that his case differed from the facts of Miller, because both he
and the weapon he possessed were reasonably related to a well-regulated
militia. n86 However, the Sixth Circuit Court of Appeals disagreed and
affirmed his conviction. n87 The Warin court followed the First Circuit
decision in Cases, which held that Miller did not set forth a general
rule, but was specific to the facts of Miller's case. n88 The court,
therefore, considered the facts before it and concluded that the Second
Amendment granted a collective right to bear arms. n89 Additionally, the
court found that the possession of arms must at the present time bear some
reasonable relationship to the preservation of a well-regulated militia.
n90 Finding that Warin was only a member of a "sedentary militia," the
court held that the Second Amendment did not protect him. n91

[*592] 5. The Fifth Circuit Upsets the Balance: United States v. Emerson
n92

Despite the varying interpretations of Miller followed by each circuit, it
was generally accepted that the right to bear arms was a collective right,
not an individual one. n93 With the Fifth Circuit's opinion in United
States v. Emerson, however, that general statement is no longer true. n94
In Emerson, the defendant was indicted for violating 18 U.S.C. §
922(g)(8)(C)(ii), which makes it a crime for a person under a restraining
order to possess or transport firearms or ammunition. n95 Emerson's wife
filed a petition for divorce and for a temporary injunction, and the judge
granted the injunction. n96 Subsequently, a grand jury indicted Emerson
for unlawfully possessing a firearm while subject to a restraining order,
in violation of 18 U.S.C. § 922(g)(8)(c)(ii). n97 The district court
dismissed the indictment, finding the statute unconstitutional because it
stripped Emerson of his right to bear arms under the Second Amendment
without first establishing his criminal status. n98

[*593] The Fifth Circuit Court of Appeals reversed and remanded the
case; however, it spent considerable effort discussing the history,
textual analysis, and judicial interpretation of the Second Amendment. n99
This analysis led the Fifth Circuit to conclude that: 1) Miller does not
support a collective rights model; 2) the text of the Second Amendment
does not suggest a collective rights model; and 3) no historical evidence
supports the argument that the Second Amendment was intended only to
convey militia powers to the states; therefore, the Second Amendment was
meant to protect the rights of individual Americans. n100 However, the
court recognized that a citizen's right to bear arms may be limited by
such factors as felony convictions or a determination of unsound mind.
n101 [*594] The court then concluded that the statute reasonably
excluded persons subjected to restraining orders. n102

C. Within D.C.--An Unmovable Barrier?

1. Setting Precedent: Sandidge v. United States n103

Precedent binds the D.C. Superior Court to the D.C. Court of Appeals'
interpretation of the Second Amendment in Sandidge v. United States. n104
Lee Sandidge appealed his conviction for carrying an unlicensed pistol,
possessing an unregistered firearm, and unlawfully possessing ammunition,
on the sole ground that the D.C. firearms statutes violated his
constitutional right to keep and bear arms. n105 The [*595] D.C. Court
of Appeals affirmed the convictions, finding no Second Amendment
violation. n106 The Sandidge court left no room for misinterpretation; it
aligned itself with other courts that have interpreted only a collective
right under the Second Amendment. n107

The Sandidge court expressly rejected the argument that, under Miller,
Congress may only regulate classes of weapons that are unrelated to the
militia. n108 Instead, the court interpreted Miller as the Supreme Court's
[*596] declaration that the Second Amendment only protects a state's (or
the District of Columbia's) right to raise and regulate a militia; it does
not restrict Congress or local governments from regulating the use and
possession of weapons that are not related to such a militia. n109

2. Ashcroft vs. His Assistants

There are currently a number of defendants in D.C. seeking to overturn
Sandidge. n110 In June 2002, for example, Michael Freeman unsuccessfully
challenged his indictment for carrying a pistol without a license,
possession of an unregistered firearm, and unlawful possession of
ammunition, as violations of the Second Amendment. n111 Primarily, Freeman
argued that the statutes had the effect of permitting only law enforcement
officers to register firearms, thereby denying the average D.C. citizen
the right to bear arms. n112 Freeman relied on the decision in Emerson,
the position taken by the Solicitor General in opposition to the petition
for certiorari in Emerson, and the memorandum endorsing Emerson sent by
Attorney General John Ashcroft to every U.S. Attorneys' Office. n113

[*597] In a letter to the National Rifle Association (NRA), Ashcroft
wrote, "let me state unequivocally my view that the text and the original
intent of the Second Amendment clearly protect the right of individuals to
keep and bear firearms." n114 Ashcroft's position relies on the Supreme
Court's decision in United States v. Verdugo-Urquidez, which noted that
the use of the words "the people," as used throughout the Bill of Rights,
secures rights to the individual, and relies on this interpretation as
revealing the intent of the Founding Fathers. n115 Ashcroft also authored
a well-publicized memorandum to all attorneys in the Department of Justice
describing further the government's policy shift. n116 These actions have
[*598] led defendants like Freeman to question the dual role of the U.S.
Attorney's Office--a division of the DOJ--as employees of Ashcroft and as
prosecutors of weapons possession offenses. n117

Even so, Freeman's motion to dismiss the indictment was denied by D.C.
Superior Court Judge Keary on the grounds that Sandidge provided
conclusive precedent. n118 Judge Keary explicitly stated that "Sandidge is
fully consistent with the Supreme Court's ruling in 1939 in United States
v. Miller . . . interpreting the Second Amendment as protecting only a
collective, rather than an individual right, to bear arms." n119 Judge
Keary's denial further noted that the inconsistency between the Sandidge
holding and the position taken by the Department of Justice had no effect
on the force of that precedent. n120 Finally, the order pointed out that
even if the court adopted a collective rights interpretation of the Second
Amendment, the statutes were constitutional as applied to this defendant,
because, like the defendant in Emerson, he was a convicted felon. n121
This denial, however, has not stopped Freeman from appealing [*599] the
decision, nor has it deterred the more than two dozen similarly-situated
defendants following his lead. n122

III. INTERPRETING THE COURT'S SILENCE

Today's challengers to the District's gun laws have a large hurdle to
overcome. First, they must convince the D.C. Court of Appeals to
reconsider the Sandidge decision and its interpretation of Miller. n123 If
successful at the appellate level, their petitions for certiorari to the
Supreme Court must demonstrate that the Miller decision was inconclusive.
n124 Although Justice McReynolds' unanimous opinion in Miller succinctly
stated the proposition that the right to bear arms only belongs to those
persons acting in reasonable relation to a well-regulated militia, this
reading has been disputed. n125 Gun lobbyists and individual rights
theorists have circulated an alternative theory. n126 Subscribers to this
alternative believe that the Court's opinion in Miller holds that only the
weapons themselves must bear some reasonable relation to a well-regulated
militia--that there can be no restrictions on an individual's right to own
any type of weapon that is currently of military value. n127 [*600]
Although widely discouraged by the circuit courts, this theory
incredulously leads to the conclusion that every law-abiding U.S. citizen
has the right to keep and bear such military weapons as grenades and
bazookas--the interpretation after Emerson that the bearer must have some
relation to a militia is no longer an absolute. n128

So, why does the Supreme Court refuse to resolve the question? n129
Arguably, the Supreme Court's reluctance to grant certiorari to any Second
Amendment case following Miller indicates the Court's satisfaction with
the circuits' interpretations of Miller. n130 However, the Court's refusal
to hear the Emerson case--where the Fifth Circuit [*601] disregarded the
conventional interpretation of Miller--suggests that the Court may
willingly accept other interpretations. n131 This idea that Miller has not
definitively settled the issue is further manifested by some interesting
words penned by Justice Thomas in his concurring opinion in Printz v.
United States, where he suggested that the Court may have a chance to
decide the issue at some point in the future. n132

The Cases court addressed the question of why the Supreme Court has
remained silent all these years. n133 As Judge Woodbury wrote:

Considering the many variable factors bearing upon the question it seems
to us impossible to formulate any general test by which to determine the
limits imposed by the Second Amendment but that each case under it, like
cases under the due process clause, must be decided on its own facts and
the line between what is and what is not a valid federal restriction
pricked out by decided cases falling on one side or the other of the line.
n134

In fact, the Cases court considered both whether the weapon used by Cases
was capable of military use and whether Cases himself was a member of a
military organization. n135 Finding that the weapon may have military use,
but that the defendant was not related in any way to a military
organization, the court determined that the defendant possessed the weapon
for his own recreation. n136 The court held, therefore, that the Federal
Firearms Act was constitutional as applied to that defendant. n137

If the members of the Supreme Court agree with Judge Woodbury's words, the
issue of whether the Second Amendment grants an individual [*602] or
collective right to bear arms would never warrant decision; instead, the
issue would become moot. n138 If this is the case, the Supreme Court's
continued silence may acknowledge the need to evaluate these challenges on
a case-by-case basis and that both the individual rights and the
collective rights interpretations share some degree of validity. n139

For example, in 2001, legal scholars believed that Emerson would provide
"the catalyst that forces a final answer to the question of whether or not
there is an individual right to own a firearm." n140 As one scholar
pointed out, "Emerson not only challenges the Supreme Court to decide what
the scope of the Second Amendment really is, but it also provides guidance
to the Supreme Court by listing the crucial topics necessary to resolve
this issue." n141 Yet, the Supreme Court declined the opportunity to
discuss these issues. n142 In fact, the defendant in Emerson joined the
[*603] ranks of parties in at least nine other circuit court cases that
petitioned the Court to decide the issue definitively and were denied
review. n143

Emerson, however, was in a different posture than the other cases, because
it created a split between the circuits by interpreting the Second
Amendment as a shield for individual rights. n144 Typically, a "conflict
between circuit courts," a "federal circuit departure from [the] usual
course of judicial proceedings," "important federal questions that have
not been decided by the Supreme Court" or federal questions that conflict
with the Supreme Court form the criteria for granting certiorari. n145
Emerson presented these issues; nevertheless, the Court refused to hear
it. n146 This leads to the question: what issues would a Second Amendment
case have to present in order to get the High Court's attention? n147

IV. THE FUTILITY OF FINDING A "POSTER-BOY"

Robert A. Levy, a senior fellow in constitutional studies at the Cato
Institute, has repeatedly predicted that Michael Freeman's case may end up
before the Supreme Court. n148 However, as Levy points out, Freeman is
more "a poster boy for gun control" than a poster boy for the individual
rights view of the Second Amendment. n149 Even Attorney General John
Ashcroft would presumably agree that disallowing convicted felons the
right to bear weapons is a reasonable restriction; and such a finding
would surely be consistent even with the approach taken by the Fifth
Circuit in Emerson. n150

[*604] Levy, however, puts forth a more intriguing hypothetical--what if
members of pro-gun groups organized "a peaceful demonstration in the
nation's capital by responsible, armed citizens volunteering to be
arrested for handgun possession?" n151 If law-abiding, upstanding D.C.
citizens with no prior records were arrested for brandishing their pistols
on the Capitol lawn, and then challenged the D.C. gun laws as
unconstitutional, would the Supreme Court be more likely to hear their
case? n152

As Levy notes, the D.C. statute is more ripe for constitutional challenge
than those of other states. n153 First, D.C. law restricts gun ownership
to law enforcement officials. n154 Second, due to D.C.'s unique status, it
is subject to the Second Amendment in a manner similar to the Federal
government. n155 Finally, Levy contends that because the D.C. U.S.
Attorney's Office prosecutes violators of these weapons statutes, an
office under the control of the Attorney General, John Ashcroft can no
longer allow the U.S. Attorneys' Offices to "prosecute infractions of a
law that the Department of Justice deems to be unconstitutional." n156

[*605] Still, it is unlikely that the Supreme Court will grant
certiorari in these cases. n157 The Supreme Court's reluctance to
unequivocally state whether the Second Amendment grants an individual or
collective right to bear arms is not because the issue is too hot. n158
The Second Amendment's right to bear arms surely is not as controversial
as abortion or segregation. n159 The Court is not reluctant because it is
overly burdened by other more important cases, nor is it is unwilling
because it fears opening the floodgates of Second Amendment litigation;
such concerns have not hampered the Court on other controversial issues.
n160 Judging by their individual records, it is doubtful that the Court
members fear their own personal integrity might be attacked if they favor
either a collective or individual right; it is equally doubtful that they
would hesitate to address the issue until they can ensure each other's
ruling. n161 Nor does the contention that they are unwilling to end the
debate result from a belief that Miller was conclusive on the issue. n162

Instead, as Judge Woodbury suggested in Cases, the Supreme Court has made
a conscious choice to leave the determination of reasonable regulations
under the Second Amendment to the triers of fact. n163 The question of
whether the right is individual or collective holds limited legal value;
courts may decide each case in terms of whether the statute in question
reasonably regulates the right without deciding whether that right is
individual or collective. n164 Few would argue that it was the [*606]
Framers' desire to authorize every United States citizen to own a nuclear
warhead, and few would argue for permitting only law enforcement officers
to possess a hunting rifle. n165 Consequently, the line between an
individual right subject to reasonable restrictions and a collective right
subject to a reasonable relation to a militia becomes blurred. n166 Each
case must be decided on an individual basis, with each court deciding the
constitutionality of the law as applied to the defendant before it. n167

(continued)

Jim March
August 4, 2004, 09:15 PM
V. CONCLUSION

With Emerson, the theory that the Second Amendment grants an individual
right to bear arms has moved out of the world of academic inquiry and into
the judiciary. n168 Many legal scholars therefore have predicted a
definitive declaration from the High Court in the near future. n169 This
contention, however, is likely without merit. n170 The Supreme Court's
unwillingness to explicitly state whether the right is individual or
collective is not a measure of avoidance, but a conscious decision to
"avoid constitutional questions when the outcome of the case does not turn
on how [they] answer." n171 It is unlikely, moreover, that a [*607] test
case will emerge that hinges so completely on the Court's resolution of
this issue. n172 As a result, in spite of the fact that new challenges to
the Second Amendment may be more plentiful, especially in the District of
Columbia, there is little likelihood that any of those challenges will
resolve this age-old debate. n173

FOOTNOTES:


n1 Letter from John Ashcroft, Attorney General, to James Baker, Executive
Director, National Rifle Association (May 17, 2001), at
http://www.nraila.org/images/Ashcroft.pdf.

n2 See, e.g., Brief for the United States in Opposition at 21 n.3, United
States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 122 S. Ct.
2362 (2002) (stating the view of Solicitor General Ted Olsen that the
Second Amendment grants the individual the right to bear arms subject to
reasonable restrictions); Brief for the United States in Opposition at 7
n.2, United States v. Haney, 264 F.3d 1161 (10th Cir. 2001), cert. denied,
122 S. Ct. 2632 (2002) (No. 01-8272) (stating the position of the
government that the Second Amendment grants an individual right); see also
Arthur Santana & Neely Tucker, Cases Take Aim at District's Gun Law:
Attorneys Use Bush Administration's Second Amendment Stand in Attack on
Ban, WASH. POST, June 13, 2002, at A20 (noting that within the first two
weeks of June, 2002, about thirty motions were filed in the D.C. Superior
Court relying on the Bush administration's stance on the Second
Amendment).

n3 See Letter from John Ashcroft, supra note 1. Cf. Letter from Seth
Waxman, Solicitor General of the United States, to Anonymous Recipient
(Aug. 22, 2000), at http://www.rkba.org/federal/doj/waxman-emerson.html.
In this letter, then-Solicitor General Seth Waxman wrote that the
Assistant United States Attorney arguing the Emerson case was correct in
asserting that only collective rights are protected under the Second
Amendment. Id. Waxman stated:
That position is consistent with the view of the Amendment taken both by
the federal appellate courts and successive Administrations. More
specifically, the Supreme Court and eight United States Courts of Appeals
have considered the scope of the Second Amendment and have uniformly
rejected arguments that it extends firearms rights to individuals
independent of the collective need to ensure a well-regulated militia.

Id.; see also Karen Branch-Brioso, Justice Department Footnote Marks
Policy Reversal, ST. LOUIS POST-DISPATCH, May 12, 2002, at B1 (noting that
the majority of Second Amendment scholarship promulgates the
individual-rights view, but a large percentage of such writings were
authored by Stephen Halbrook, who often served as lead lawyer on National
Rifle Association (NRA) cases against gun control); David Yassky, The
Sound of Silence: The Supreme Court and the Second Amendment -- A Response
to Professor Kopel, 18 ST. LOUIS U. PUB. L. REV. 189, 190-91 (1999)
(arguing that the federal district court in Texas relied on the views
perpetrated by individual-rights scholars in deciding United States v.
Emerson); Dennis A. Henigan, Ashcroft's Bad Aim: What Is Going on with the
Justice Department and Guns?, LEGAL TIMES, Vol. 25, No. 30, July 29, 2002
(stating that "there is no doubt that Second Amendment challenges to gun
laws will now become a standard part of the criminal defense attorney's
tool kit" and using, as an example, John Walker Lindh's reliance on the
policy shift in his motion to dismiss his firearms charges); William L.
McCoskey, The Right of the People to Keep and Bear Arms Shall Not Be
Litigated Away: Constitutional Implications of Municipal Lawsuits Against
the Gun Industry, 77 IND. L.J. 873, 878 (2002) (stating that "until fairly
recently, however, many constitutional scholars simply ignored or
marginalized the Second Amendment as relatively unimportant in the study
of constitutional law.").

n4 See Neely Tucker & Arthur Santana, D.C. Handgun Ban Challenged in
Court: Attorneys in 2 Cases Cite Ashcroft Stance on 2nd Amendment, WASH.
POST, May 30, 2002, at A1 (stating that "the District is a logical place
for the interpretation to be tested"); Robert A. Levy, Bearing Arms in
D.C., LEGAL TIMES, July 22, 2002, at 42 (examining the factors that make
D.C. gun laws so ripe for constitutional challenge). See also D.C. Code §
22-4504(a) (2001) ("No person shall carry within the District of Columbia
either openly or concealed on or about their person, a pistol, without a
license issued pursuant to District of Columbia law, or any deadly or
dangerous weapon capable of being so concealed."); D.C. Code § 7-2502.01
(2001) (delineating the persons to which a registration certificate may be
issued, effectively restricting issuance to law enforcement officials).

n5 Santana & Tucker, supra note 2 (noting that these challenges are based
on the Bush administration's declarations that the Second Amendment grants
an individual right); see also Levy, supra note 4 (stating that under the
right circumstances, a D.C. resident could become the subject of a test
case).

n6 See Levy, supra note 4 (arguing that the D.C. law is particularly
susceptible to challenges because it does not fall within the "reasonable
regulation" test put forth by the Bush Administration); see also
Branch-Brioso, supra note 3 (describing the belief of some Second
Amendment scholars that the new policy will spur challenges to states with
highly restrictive gun laws, such as D.C.).

n7 See Sandidge v. United States, 520 A.2d 1057, 1059 (D.C. 1987) (holding
that the D.C. gun laws are constitutional on the grounds that the Second
Amendment grants a collective, not an individual, right to bear arms).

n8 See, e.g. Santana & Tucker, supra note 2 (citing the belief amongst
some scholars that the denial of D.C. defendants' motions to dismiss is
just the first step on the path to the Supreme Court).

n9 United States v. Miller, 307 U.S. 174 (1939). For a recent example of
scholarly analysis of the High Court's silence and of the Miller opinion,
see McCoskey, supra note 3, at 878 (stating that "the Supreme Court has
been mostly and conspicuously silent on the extent of the right . . . [and
the Miller decision] did nothing to conclusively settle the issue").

n10 Miller, 307 U.S. at 178.

n11 See, e.g., Oskar M. Perez, United States v. Emerson: The Decision That
Will Potentially Force the Supreme Court to Finally Decide Whether the
Second Amendment Protects the State or the People, 48 LOY. L. REV. 367,
383-85 (2002) (arguing that the Supreme Court would have to decide the
Second Amendment issue if it chose to hear the Emerson case).

n12 United States v. Emerson, 270 F.3d 203, 264 (5th Cir. 2001), cert.
denied, 536 U.S. 907 (2002) (splitting from the other circuits in ruling
that the Second Amendment granted an individual right to bear arms); see
also Yassky, supra note 3, at 190-91 (arguing that the federal district
court in Texas relied on the views perpetrated by individual-rights
scholars in deciding Emerson).

n13 See Emerson, 270 F.3d at 218-20. In leading up to his own "individual
rights" view of the Second Amendment, Judge Garwood first categorizes the
views of other courts. Id. Judge Garwood categorizes the Fourth, Sixth,
Seventh, and Ninth Circuits as having adopted a "states' rights" or
"collective rights" view, meaning that the Second Amendment merely
recognizes the right of a state to arm its militia. Id. He also indicates
that the First, Third, Eighth, Tenth, and Eleventh Circuits have adopted a
"sophisticated collective rights model," which considers that the
"'individual' right to bear arms can only be exercised by members of a
functioning, organized state militia who bear the arms while and as a part
of actively participating in the militia's activities." Id. (emphasis in
original).

n14 See Robert Hardaway et al., The Inconvenient Militia Clause of the
Second Amendment: Why the Supreme Court Declines to Resolve the Debate
over the Right to Bear Arms, 16 ST. JOHN'S J. LEGAL COMMENT. 41, 48-51
(2002) (hypothesizing the reasons for the Supreme Court's silence); but
see David B. Kopel, The Supreme Court's Thirty-Five Other Gun Cases: What
the Supreme Court Has Said About the Second Amendment, 18 ST. LOUIS U.
PUB. L. REV. 99 (1999) (arguing that the Supreme Court has addressed the
issue both directly and indirectly in thirty-five cases since 1820).

n15 See, e.g., Robert A. Levy, Will Individuals Get Their Second Amendment
Rights? The District Presents the Test Case, LEGAL TIMES, July 22, 2002 at
42 (suggesting that a successful challenger to the D.C. law might be an
otherwise responsible, law-abiding citizen who participates in a peaceful
demonstration, such as marching armed in the nation's capital).

n16 See generally Hardaway, supra note 14, at 48-51 (putting forth several
possible reasons why the Supreme Court has refused to address the issue
since Miller). Cf. Kopel, supra note 14 at 99, 123 (arguing, generally,
that the Supreme Court has addressed the Second Amendment right indirectly
in thirty-five cases, and at least one Justice would welcome a chance to
settle the issue definitively); Yassky, supra note 3 (disagreeing with
Kopel's interpretation that the thirty-five cases illustrate the Court's
belief that the Second Amendment confers an individual right).

n17 Almost every scholarly article on the Second Amendment begins by
delineating the differences between the individual rights and collective
rights theories and by giving a full textual and historical analysis of
the Amendment. See, e.g. Hardaway, supra note 14; Prince, infra note 30;
Yassky, infra note 19. This Comment provides only an overview of these two
schools of thought, partially because I believe that both arguments lack
legal validity.

n18 U.S. CONST. amend. II.

n19 See David Yassky, The Second Amendment: Structure, History, and
Constitutional Change, 99 MICH. L. REV. 588, 589 (2000) (stating, "A
fierce debate about the Second Amendment has been percolating in academia
for two decades, and has now bubbled through to the courts"); Sanford
Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 640 (1989)
(suggesting that constitutional scholars have largely overlooked the
Second Amendment). See generally Carl T. Bogus, Symposium on the Second
Amendment: Fresh Looks: The History and Politics of Second Amendment
Scholarship: A Primer, 76 CHI-KENT. L. REV. 3 (2000) (giving a history of
the growing interest in the Second Amendment).

Jim March
August 4, 2004, 09:17 PM
n20 Bogus, supra note 19, at 5 (crediting a student at William and Mary
Law School as the first to publicize the individual-rights theory).

n21 Hardaway, supra note 14, at 56-57 (stating that "the broad individual
right view pictures the Second Amendment as guaranteeing an 'individual
right to bear arms for all legal purposes -- barring virtually all
regulations of firearms'").

n22 See United States v. Emerson, 270 F.3d 203, 218-220 (5th Cir. 2001)
(relying on legal scholarship, Judge Garwood expounded upon the three
schools of thought).

n23 Id. at 218-19 (noting also that the government in Emerson relied on
the states' rights view).

n24 See discussion infra Part I.

n25 Emerson, 270 F.3d at 227-28 (quoting United States v.
Verdugo-Urquidez, 494 U.S. 259 (1990)). According to the Verdugo-Urquidez
Court, "the people" "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."
Verdugo-Urquidez, 494 U.S. at 265.

n26 Emerson, 270 F.3d at 227 (arguing, however, that "this would also
require a corresponding change in the balance of the text . . . that is
not only far removed from the actual wording . . . but also would be in
substantial tension with Art. 1, § 8, Cl. 16").

n27 Id. at 229 (stating, however, that "there is no question that the
phrase 'bear arms' may be used to refer to the carrying of arms by a
soldier or militiaman").

n28 See discussion infra Part I; see also, Kopel, supra note 14 at 110.

n29 Emerson, 270 F.3d at 235 (relying on Madison and his Federalist Papers
to support this view).

n30 See, e.g., John Randolph Prince, The Naked Emperor: The Second
Amendment and the Failure of Originalism, 40 BRANDEIS L.J. 659, 713-14
(2002). Prince argues that "the militia [did] not consist of self-selected
groups of armed citizens challenging authority. Rather, the militia was
subject to the orders and discipline of both state and federal authority."
Id. at 714

n31 Hardaway, supra note 14, at 133 (disagreeing with the Emerson court's
view that "'the right exists independent of the existence of the
militia'").

n32 See Prince, supra note 30, at 662 ("Nearly everyone who is involved
with Second Amendment scholarship . . . uses an originalist perspective,
relying heavily on various readings of eighteenth-century republican
ideology.").

n33 See, e.g., Emerson, 270 F.3d at 238-39. The Anti-Federalists feared
that the federal government would act or fail to act so as to destroy the
militia, e.g., failure to arm the militia, disarmament of the militia,
failure to prescribe training for the militia, creation of a select
militia or making militia service so unpleasant that the people would
demand a standing army or select militia. These concerns over the militia
were exacerbated by the third issue: the federal government's power to
maintain a standing army (art. I, § 8, cl. 12). The Anti-Federalists
feared that the federal government's standing army could be used to
tyrannize and oppress the American people. Without a militia to defend
against the federal government's standing army, the states and their
citizens would be defenseless.
Id. at 237-39.

n34 Id. at 259-60 (arguing that "all of the evidence indicates that the
Second Amendment, like other parts of the Bill of Rights, applies to and
protects individual Americans").

n35 Hardaway, supra note 14, at 94-95. Hardaway reviewed the modifications
made to the Second Amendment and argued that each change strengthened "the
militia orientation of the Amendment."

n36 See, e.g., United States v. Emerson, 270 F.3d 203 (5th Cir. 2001)
(incorporating a discussion regarding the textual and historical analysis
of the Second Amendment).

n37 United States v. Miller, 307 U.S. 174 (1939).

n38 See, e.g., Kopel, supra note 14 (suggesting that there are nineteen
other twentieth century cases from which the Supreme Court's
interpretation of the Second Amendment can be inferred).

n39 See Miller, 307 U.S. at 175.

n40 48 Stat. 1239 (1934). The statute states:
It shall be unlawful for any person who is required to register as
provided in section 5 hereof and who shall not have so registered, or any
other person who has not in his possession a stamp-affixed order as
provided in section 4 hereof, to ship, carry, or deliver any firearm in
interstate commerce.

Id. § 11; see also United States v. Miller, 26 F. Supp. 1002 (W.D. Ark.
1939).

n41 Miller, 307 U.S. at 178 (1939); see also Lewis v. United States, 445
U.S. 55, 65, n.8 (1980) (quoting the same passage and stating that the
"legislative restrictions on the use of firearms are neither based upon
constitutionally suspect criteria, nor do they trench upon any
constitutionally protected liberties").

n42 Miller, 307 U.S. at 178-82. The Court pointed out that the importance
of "militia" derives from colonial history, and early discussions
surrounding the development of the Constitution. Id. at 179.

n43 Id. at 178.

n44 See discussion infra Part II.B.

n45 521 U.S. 898 (1997).

n46 Kopel, supra note 14, at 121-24 (arguing that Justice Thomas's
concurring opinion suggests that this Court would welcome the opportunity
to decide definitively whether the right to bear arms is an individual or
collective right).

n47 521 U.S. 898; see also Brady Handgun Violence Prevention Act, Pub. L.
No. 103-159, 107 Stat. 1536 (1993).

n48 Printz, 521 U.S. at 937-39 (Thomas, J., concurring) (opining that
perhaps the Court would someday have the opportunity to determine whether
the Second Amendment grants an individual or collective right); see also
Kopel, supra note 14, at 120-25 (using Thomas's concurring opinion to
assess the likelihood that the Supreme Court will finally put an end to
the Second Amendment debate).

n49 Printz, 521 U.S. at 937-39 (Thomas, J., concurring) (emphasis in
original).

n50 Kopel, supra note 14, at 120-25.

n51 Cases v. United States, 131 F.2d 916 (1st Cir. 1942).

n52 Id. at 919. See also Federal Firearms Act, 52 Stat. 1250 (1942)
(current version at 15 U.S.C. § 902(e),(f) (2002)) making it a criminal
offense for any person convicted of a violent crime to receive a firearm).

n53 Cases, 131 F.2d at 919 (reiterating defendant's contention as to the
Federal Firearms Act unconstitutionality).

n54 Id. at 919 (finding that none of the defendant's contentions were
sound).

n55 Id. at 921 (noting, additionally, that the Act "undoubtedly curtails
to some extent the right of individuals to keep and bear arms but it does
not follow from this as a necessary consequence that it is bad under the
Second Amendment").

n56 Id. at 922 (interpreting Miller to mean that "under the Second
Amendment, the federal government can limit the keeping and bearing of
arms by a single individual . . . but it cannot prohibit the possession or
use of any weapon which has any reasonable relationship to the
preservation or efficiency of a well regulated militia").

n57 Id. (refusing to extend the holding in this case beyond what was
necessary to resolve it).

n58 Id. (suggesting that interpreting Miller as an absolute rule has
little practical value in modern application). The court reasoned that,
"under present day conditions, the federal government would be empowered
only to regulate the possession or use of weapons such as a flintlock
musket or a matchlock harquebus." Id.

n59 Id.
Considering the many variable factors bearing upon the question it seems
to us impossible to formulate any general test by which to determine the
limits imposed by the Second Amendment but that each case under it, like
cases under the Due Process Clause, must be decided on its own facts and
the line between what is and what is not a valid federal restriction
pricked out by decided cases falling on one side or the other of the line.

Id.

n60 131 F.2d 261 (3d Cir. 1942).

n61 Id. at 266.
It is abundantly clear both from the discussions of this amendment
contemporaneous with its proposal and adoption and those of learned
writers since that this amendment, unlike those providing for protection
of free speech and freedom of religion, was not adopted with individual
rights in mind, but as a protection for the States in the maintenance of
their militia organizations against possible encroachments by the federal
power.

Id.

n62 Id. at 263; see also Federal Firearms Act, 15 U.S.C.A. § 901(f) (1938)
(making it unlawful "to receive any firearm or ammunition which has been
shipped or transported in interstate or foreign commerce" if a person has
been convicted of a violent crime).

n63 Id. at 266.

n64 Id. "Weapon bearing was never treated as anything like an absolute
right by the common law. It was regulated by statute as to time and place
as far back as the Statute of Northampton in 1328 and on many occasions
since." Id. "The experiences in England under James II of an armed royal
force quartered upon a defenseless citizenry was fresh in the minds of the
Colonists. They wanted no repetition of that experience in their newly
formed government." Id.

n65 Id.
The [Miller] Court said that in the absence of evidence tending to show
that possession of such a gun at the time has some reasonable relationship
to the preservation or efficiency of a well regulated militia, it could
not be said that the Second Amendment guarantees the right to keep such an
instrument. The appellant here having failed to show such a relationship,
the same thing may be said as applied to the pistol found in his
possession.

Id.

n66 Id. Here the court relied on early state constitutions that prohibited
people from bearing arms in public places and carrying concealed weapons.
Id. The court then argued that such classifications did not prevent the
maintenance of the militia. Id. at 266-67.

n67 47 F.3d 120 (4th Cir. 1995).

n68 978 F.2d 1016 (8th Cir. 1992).

n69 Love, 47 F.3d at 124 ("Since [Miller], the lower federal courts have
uniformly held that the Second Amendment preserves a collective, rather
than individual, right."

n70 Id. at 122. Love attempted to purchase a handgun in 1990. Id.
Following state law, she completed her application honestly and correctly.
Id. Upon review of the application, police discovered that Ms. Love had
four prior arrests. Id. Despite only one of the arrests resulting in a
misdemeanor conviction, the application was denied. Id. The state court
ordered the police to approve the application because prior arrests were
not listed as one of the grounds for denial under the Maryland Code. Id.
Love then filed a new suit alleging that the statute violated due process
and the Second Amendment; the suit was dismissed and Love appealed. Id.

n71 Id. at 123. Relying on scholarly material, Love argued that she had a
constitutional right to own a firearm and the state law had no authority
to deny her that right. Id. The Court disagreed. Id.

n72 Id. at 124.

n73 Id. (citing United States v. Johnson, 497 F.2d 548 (4th Cir. 1974) as
precedent for the proposition that the defendant bears the burden of
proving how his or her possession of a handgun ensures the effectiveness
of the militia).

n74 United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992)(stating
that "the purpose of the Second Amendment is to restrain the federal
government from regulating the possession of arms where such regulation
would interfere with the preservation or efficiency of the militia").

n75 Id. at 1017-18. Relying on Miller, Hale argued "that the Second
Amendment bars the federal government from regulating the particular
weapons seized because the weapons are susceptible to military use and are
therefore, by definition, related to the existence of 'a well regulated
militia.'" Id; see also 18 U.S.C. § 922(o)(2002); 26 U.S.C. §
5861(d)(2000).

n76 Hale, 978 F.2d at 1018.
These [weapons seized] included one MAC-10.45 caliber submachine gun,
three "Sten-type" 9 millimeter fully automatic submachine guns, two M-1
carbines with kits for enabling fully automatic fire, one .22 caliber
pistol with a silencer, and five .223 caliber assault rifles modified into
"M-16 type" fully automatic machine guns. The agents also seized the
principal components or "receivers" of one MAC-10, one Sten, and one "M-16
type" machine gun.

Id. at 1017.

n77 Id. at 1019 (relying largely on the Cases opinion). The Court stated:
The claimant of Second Amendment protection must prove that his or her
possession of the weapons was reasonably related to a well regulated
militia. Where such a claimant presented no evidence either that he was a
member of a military organization or that his use of the weapon was "in
preparation for a military career," the Second Amendment did not protect
the possession of the weapon.

Id. at 1020 (citations omitted) (emphasis in original).

(continued)

Jim March
August 4, 2004, 09:20 PM
n78 Id. at 1019 (citing United States v. Warin, 530 F.2d. 103, 106 (6th
Cir. 1976)). The court further stated that the "rule emerging from Miller
is that, absent a showing that the possession of a certain weapon has
'some reasonable relationship to the preservation or efficiency of a
well-regulated militia,' the Second Amendment does not guarantee the right
to possess the weapon." Id.

n79 Id. at 1020. The court stated that because the Supreme Court has not
addressed the issue since 1939, the Cases decision "remains one of the
most illuminating circuit opinions on the subject of 'military' weapons
and the Second Amendment." Id. at 1019. The court further noted that,
since Miller, no federal court had found that a defendant's possession of
a weapon met the militia-relation requirement. Id. at 1020. "'Technical'
membership in a state militia (e.g., membership in an 'unorganized' state
militia) or membership in a non-governmental military organization is not
sufficient to satisfy the 'reasonable relationship' test. Membership in a
hypothetical or 'sedentary' militia is likewise insufficient." Id.
(citations omitted).

n80 Id. at 1020 ("Whether the 'right to bear arms' for militia purposes is
'individual' or 'collective' in nature is irrelevant where, as here, the
individual's possession of arms is not related to the preservation or
efficiency of a militia.").

n81 Warin, 530 F.2d 103.

n82 Id.; see, e.g., Gun Control Act of 1968, 26 U.S.C. § 5801 (2000).

n83 Warin, 530 F.2d at 104 (describing the weapon as "a 9 mm prototype
submachine gun measuring approximately 21 inches overall length, with a
barrel length of approximately 7 1/2 inches, which had not been registered
to him in the National Firearms Registration and Transfer Record as
required").

n84 Id. at 105.

n85 Id. Both sides stipulated the following facts: 1) The armed forces of
the United States use machine guns; 2) this particular type of gun
contributes to the United States' armed forces ability to successfully
protect and efficiently defend the country; 3) submachine guns comprise
part of the United States equipment and this type of firearm reasonably
relates to the effectiveness of the armed forces. Id.

n86 Id. Warin argued that Miller implied that "a member of the 'sedentary
militia' may possess any weapon having military capability" and
application of the Gun Control Act to him was therefore unconstitutional
under the Second Amendment. Id. at 105.

n87 Id. at 103.
In Miller the Supreme Court did not reach the question of the extent to
which a weapon which is "part of the ordinary military equipment" or whose
"use could contribute to the common defense" may be regulated. In holding
that the absence of evidence placing the weapon involved in the charges
against Miller in one of these categories precluded the trial court from
quashing the indictment on Second Amendment grounds, the Court did not
hold the converse--that the Second Amendment is an absolute prohibition
against all regulation of the manufacture, transfer and possession of any
instrument capable of being used in military action.

Id. at 105-06.

n88 Id. at 106 (reiterating the First Circuit's reasoning that "it was not
the intention of the Supreme Court to hold that the Second Amendment
prohibits Congress from regulating any weapons except antiques 'such as a
flintlock musket or a matchlock harquebus'"). "If the logical extension of
the defendant's argument for the holding of Miller was inconceivable in
1942, it is completely irrational in this time of nuclear weapons." Id.

n89 Id. at 106.

n90 Id. (relying on prior precedent from the Sixth Circuit, as well as
persuasive jurisprudence from sister circuits).

n91 Id. at 106-07 (emphasizing that simply because Warin was eligible to
enroll in the state militia, he did not automatically have the authority
to possess a submachine gun). The court further noted that a state statute
exempted members of the organized militia from a provision prohibiting all
persons from acquiring, possessing, carrying, or using a "dangerous
ordnance" (including automatic firearms), but that exemption did not
extend to members of the "sedentary militia." Id. Finally, the court
opined that there was no evidence "that a submachine gun in the hands of
an individual 'sedentary militia' member would have any, much less a
'reasonable relationship to the preservation or efficiency of a well
regulated militia.'" Id. (quoting United States v. Miller, 307 U.S. 174,
178 (1939)).

n92 United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).

n93 See discussion supra Part IIB.

n94 See Perez, supra note 11, at 368 (stating that unlike many other court
decisions that support the collective rights model, Emerson analyzes the
Second Amendment issue in great detail and concludes that the Amendment
permits an individual right to bear arms).

n95 Emerson, 270 F.3d at 210; see also 18 U.S.C. § 922(g)(8) (2000). The
statute states in relevant part:
It shall be unlawful for any person . . . who is subject to a court order
that . . . restrains such person from harassing, stalking, or threatening
an intimate partner . . . to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or ammunition;
or to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.

Id.

n96 Emerson, 270 F.3d at 210-11. Emerson's wife filed a petition for
divorce, requesting inter alia a temporary injunction prohibiting Emerson
from engaging in twenty-nine specified acts. Id. After a hearing, in which
Emerson appeared pro se, the judge issued the temporary order. Id.

n97 Id. at 211-12. The count alleged that Emerson "unlawfully possessed
'in and affecting interstate commerce' a firearm, a Beretta pistol, while
subject to the [restraining order]." Id. at 212. Emerson moved to dismiss
the indictment on the grounds that the statute violated the Second
Amendment both facially and as applied to him. Id.

n98 United States v. Emerson, 46 F. Supp. 2d 598, 611 (N.D.Tex. 1999).
Judge Cummings's opinion included a lengthy discussion on the two schools
of Second Amendment scholarship, a textual analysis of the Second
Amendment, a historical analysis, a structural analysis, judicial
interpretations, and prudential concerns regarding the Second Amendment,
before concluding that the Second Amendment protects an individual's right
to bear arms. Id. at 599-610. Judge Cummings explicitly stated, "The
rights of the Second Amendment should be as zealously guarded as the other
individual liberties enshrined in the Bill of Rights. Id. at 610.
Therefore, in finding § 922(g)(8) unconstitutional, Judge Cummings stated:
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.

Id. at 611; see also Stephen P. Halbrook, Rewriting the Second Amendment,
AMERICAN HUNTER, Oct. 1, 2001 (stating that "Judge Cummings' opinion is
unequaled in its scholarship and analysis of federal jurisprudence
concerning the Second Amendment" and praising the decision as "the only
decision squarely to face the music--the text of the Second Amendment, the
Framers' intent, and the relevant U.S. Supreme Court decisions").

n99 Emerson, 270 F.3d at 210, 227-59. For views arguing that Judge
Garwood's opinion overstepped its bounds, see Emerson, 270 F.3d at 272
(Parker, J., specially concurring) (labeling the majority's discussion of
the Second Amendment "84 pages of dicta" and refusing to concur with that
portion of the decision); John Council, Ammo for Both Sides in Gun Case,
LEGAL TIMES, Oct. 22, 2001 (quoting one scholar's belief that the opinion
lacks judicial restraint because "federal courts are not permitted to give
advisory opinions, and that's what they've done on the issue of whether
there is an individual right or a collective right in the Second
Amendment").

n100 Emerson, 270 F.3d at 226, 233, 260. After analyzing the opinion, the
court concluded that Miller neither supported a collective rights approach
nor an individual rights view, therefore "Miller itself does not resolve
that issue." Id. at 226-27. The court then diagramed the text of the
Amendment, examining the terms "people," "bear arms," "keep . . . arms,"
and the effect of the preamble. Id. at 227-36. It found that the
collective-rights proponents tortured their meanings in a manner
"inconsistent with the substantive guarantee's text, its placement within
the bill of rights and the wording of the other articles thereof and of
the original Constitution as a whole." Id. at 236. Additionally, the court
reviewed the history of the Amendment, including the Anti-Federalists'
fears, the Federalist response, the legislative history, and nineteenth
century commentary, before concluding "that the Second Amendment, like
other parts of the Bill of Rights, applies to and protects individual
Americans." Id. at 259-60.

n101 Id. at 261 ("As we have previously noted, it is clear that felons,
infants and those of unsound mind may be prohibited from possessing
firearms.").

n102 Id. at 264. The court found that "Emerson actually posed a credible
threat to the physical safety of his wife, and . . . [he] could,
consistent with the Second Amendment, be precluded from possessing a
firearm while he remained subject to the order." Id. at 261.

n103 Sandidge v. United States, 520 A.2d 1057 (D.C. App. 1987).

n104 Id. at 1058 (agreeing with the Cases court that the Constitution does
not grant the right to bear arms; the state governments confer such
rights).

n105 Id. at 1057 (noting that Sandidge was convicted by a jury for
violating D.C. Code § 22-3204 (1981), § 6-2311 (1981), and § 6-2361
(1981)); see also D.C. Code § 22-3204 (1981) (current version at D.C. Code
§ 22-4504 (2001)). This statute states:
Carrying concealed weapons; possession of weapons during commission of
crime of violence; penalty.
(a) No person shall carry within the District of Columbia either openly or
concealed on or about their person, a pistol, without a license issued
pursuant to District of Columbia law, or any deadly or dangerous weapon
capable of being so concealed. Whoever violates this section shall be
punished as provided in § 22-4515, except that:
(1) A person who violates this section by carrying a pistol, without a
license issued pursuant to District of Columbia law, or any deadly or
dangerous weapon, in a place other than the person's dwelling place, place
of business, or on other land possessed by the person, shall be fined not
more than $ 5000 or imprisoned for not more than 5 years, or both; or
(2) If the violation of this section occurs after a person has been
convicted in the District of Columbia of a violation of this section or of
a felony, either in the District of Columbia or another jurisdiction, the
person shall be fined not more than $ 10,000 or imprisoned for not more
than 10 years, or both.

Id.; D.C. Code § 6-2311 (1981) (current version at D.C. Code § 7-2502.01
(2002)). This statute states:
Registration requirements. (a) Except as otherwise provided in this unit,
no person or organization in the District of Columbia ("District") shall
receive, possess, control, transfer, offer for sale, sell, give, or
deliver any destructive device, and no person or organization in the
District shall possess or control any firearm, unless the person or
organization holds a valid registration certificate for the firearm. A
registration certificate may be issued: (1) To an organization if: (A) The
organization employs at least 1 commissioned special police officer or
employee licensed to carry a firearm whom the organization arms during the
employee's duty hours; and (B) The registration is issued in the name of
the organization and in the name of the president or chief executive
officer of the organization; (2) In the discretion of the Chief of Police,
to a police officer who has retired from the Metropolitan Police
Department; or (3) In the discretion of the Chief of Police, to the Fire
Marshal and any member of the Fire and Arson Investigation Unit of the
Fire Prevention Bureau of the Fire Department of the District of Columbia,
who is designated in writing by the Fire Chief, for the purpose of
enforcing the arson and fire safety laws of the District of Columbia. (b)
Subsection (a) of this section shall not apply to: (1) Any law enforcement
officer or agent of the District or the United States, or any law
enforcement officer or agent of the government of any state or subdivision
thereof, or any member of the armed forces of the United States, the
National Guard or organized reserves, when such officer, agent, or member
is authorized to possess such a firearm or device while on duty in the
performance of official authorized functions; (2) Any person holding a
dealer's license; provided, that the firearm or destructive device is: (A)
Acquired by such person in the normal conduct of business; (B) Kept at the
place described in the dealer's license; and (C) Not kept for such
person's private use or protection, or for the protection of his business;
(3) With respect to firearms, any nonresident of the District
participating in any lawful recreational firearm-related activity in the
District, or on his way to or from such activity in another jurisdiction;
provided, that such person, whenever in possession of a firearm, shall
upon demand of any member of the Metropolitan Police Department, or other
bona fide law enforcement officer, exhibit proof that he is on his way to
or from such activity, and that his possession or control of such firearm
is lawful in the jurisdiction in which he resides; provided further, that
such weapon shall be unloaded, securely wrapped, and carried in open view.

Id.; D.C. Code § 6-2361 (1981) (current version at D.C. Code § 7-2506.01
(2001)). This statute states:
Persons permitted to possess ammunition. No person shall possess
ammunition in the District of Columbia unless: (1) He is a licensed dealer
pursuant to subchapter IV of this unit; (2) He is an officer, agent, or
employee of the District of Columbia or the United States of America, on
duty and acting within the scope of his duties when possessing such
ammunition; (3) He is the holder of the valid registration certificate for
a firearm of the same gauge or caliber as the ammunition he possesses;
except, that no such person shall possess restricted pistol bullets; or
(4) He holds an ammunition collector's certificate on September 24, 1976.

Id.

n106 Sandidge, 520 A.2d at 1058.

n107 Id. (stating that the Second Amendment "protects a state's right to
raise and regulate a militia by prohibiting Congress from enacting
legislation that will interfere with that right").

n108 Id. (noting that Sandidge's reliance on Miller was "misplaced" and
adopting the interpretation of the Cases court, which held that Miller did
not set forth a general rule).

n109 Id. at 1059 (holding that Sandidge was unable to show that his
possession of a handgun related to D.C.'s preservation of a militia).

n110 See Tucker & Santana, D.C. Handgun Ban Challenge, supra note 4
(stating that "two D.C. defendants are likely to be the first of many to .
. . make constitutional challenges to the city's handgun ban"); Neely
Tucker and Arthur Santana, U.S. Backs District Gun Law in Court: Argument
Differs from Ashcroft's, WASH. POST, May 31, 2002 (discussing the "first
of at least three cases that challenge the District's prohibition on
handguns as unconstitutional"); Santana & Tucker, supra note 2 (noting
that thirty motions were filed in the D.C. Superior Court in June of 2002,
to dismiss gun-carrying charges); Levy, supra note 4 (discussing the cases
already before the D.C. courts); Editorial, Guns and Ideology, WASH. POST,
Aug. 5, 2002 (analyzing one of these challenges).

n111 United States v. Freeman, No. F-1048-02 (D.C. Super. Ct. June 11,
2002) (denying defendant's motion to dismiss the indictment on the basis
of preexisting precedent in D.C.).

n112 Id.

n113 See Brief for the United States in Opposition at 19 n.3, United
States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 122 S. Ct.
2362 (2002). The Solicitor General stated:
The current position of the United States . . . is that the Second
Amendment more broadly protects the rights of individuals, including
persons who are not members of any militia or engaged in active military
service or training, to possess and bear their own firearms, subject to
reasonable restrictions designed to prevent possession by unfit persons or
to restrict the possession of types of firearms that are particularly
suited to criminal misuse.

Id.; see also United States v. Freeman, No. F-1048-02 (D.C. Super. Ct.
June 11, 2002) (order denying defendant's motion to dismiss);
Branch-Brioso, supra note 3 (describing the memo Ashcroft sent to every
U.S. Attorney, "notifying them they should contact headquarters in 'all
cases in which Second Amendment issues are raised'" and quoting a Brady
Center attorney's view that the memo "is basically a gift to criminals");
Henigan, supra note 3 (describing the "quandary Ashcroft has created for
federal prosecutors"). Henigan states:
For example, in proceedings in United States v. Freeman . . . the
government did cite the controlling legal authority in the District . . .
. In doing so, however, prosecutors explained that this authority
"contains reasoning that is inconsistent with the position of the United
States as to the scope of the Second Amendment," noting that they were,
nevertheless, ethically obligated "to point the Court to controlling legal
authority known 'to be dispositive of a question at issue.'"

Id.

(continued! Yes, again...)

Jim March
August 4, 2004, 09:24 PM
n114 Letter from John Ashcroft, supra note 1. For an example of the public
outcry that followed this letter, see Henigan, supra note 3 (describing
the letter as an "extrajudicial statement . . . to an opposing amicus
party in a pending case, stating that he agreed with that party's
interpretation," and commenting on the ethics complaints filed with the
Justice Department's Office of Professional Responsibility against
Ashcroft by Common Cause and the Brady Center to Prevent Gun Violence).

n115 Letter from John Ashcroft, supra note 1 (stating his belief that "the
Amendment's plain meaning and original intent prove [that] . . . like the
First and Fourth Amendments, the Second Amendment protects the rights of
'the people' . . . This view of the text comports with the all but
unanimous understanding of the Founding Fathers"); see also United States
v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (plurality opinion) (stating
that "the people" has the same meaning throughout the Bill of Rights).

n116 See Linda Greenhouse, Justice Department Backs Individuals' Right to
Bear Arms, HOUS. CHRON., May 8, 2002 (quoting from Ashcroft's letter to
all federal prosecutors, which states, "in my view, the Emerson opinion,
and the balance it strikes, generally reflect the correct understanding of
the Second Amendment"). For opinions on the Ashcroft policy shift, see
Jacob Sullum, Second Thoughts, REASON MAG. Aug. 1, 2002 available at
http://reason.com/0208/ci.js.second.html. ("[Ashcroft's] position, even if
adopted by the U.S. Supreme Court, is not likely to have practical
consequences anytime soon."); Branch-Brioso, supra note 3 (quoting one
legal historian's belief that the Justice Department's policy shift will
have more significance in the political area than in the courts. Cf. Sens.
Edward M. Kennedy and Charles Schumer, Editorial, Ashcroft's Assault on
Gun Laws, THE BOSTON GLOBE, July 21, 2001 (stating that, "all law-abiding
Americans should be deeply concerned about Ashcroft's efforts to . . .
dramatically reverse longstanding Justice Department measures to keep guns
out of the hands of those who pose the greatest risk to safety and
security" and urging Ashcroft to "live up to the commitments he made
during his Senate Judiciary Committee confirmation hearings"); Henigan,
supra note 3 (arguing that "the department's position amounts to an
invitation to federal judges to decide for themselves whether a gun law
under attack is sufficiently 'reasonable' . . . instead of deferring to
the judgment of Congress or state legislatures"); Educational Fund to Stop
Gun Violence Submits an Opposition to Block Ashcroft Letter, U.S.
NEWSWIRE, Aug. 16, 2001 (describing the Memorandum of Law filed by the
Educational Fund to Stop Gun Violence in an attempt to prevent Ashcroft's
letter from being admitted in the Emerson case). The article stated:
The Educational Fund's Memorandum of Law demonstrates that the Attorney
General acted outside his statutory authority in issuing a legal opinion
at all because the law authorizes him to render legal opinions only to and
at the request of the President and certain other members of the executive
branch . . . . Even when the Attorney General has been requested to render
a legal opinion, it is improper for the Attorney General to opine on an
issue reserved to the courts, such as proper interpretation of the Second
Amendment.

Id.

n117 United States v. Freeman, No. F-1048-02 (D.C. Super. Ct. June 11,
2002) (reiterating the defendant's reliance on the Attorney General's
memorandum and the assertion in Freeman "that the United States now
unequivocally interprets the Second Amendment as an individual and
personal right, rather than a collective right of states to maintain
militias, given the recent position taken by the Solicitor General and the
Attorney General").

n118 Id. at 1, 3 (stating that Sandidge "is conclusive precedent in this
jurisdiction and is dispositive of defendant's instant constitutional
challenge, as it involved the same statutes challenged by defendant in
this case").

n119 Id. at 3-4.

n120 Id. at 4 ("While there may be an inconsistency between the Court of
Appeals' holding in Sandidge and the position expressed recently by the
United States Department of Justice in Emerson, that inconsistency does
not diminish in any way the binding precedential force of the Court of
Appeals Sandidge ruling on this court").

n121 Id. (noting Freeman's prior legal infractions).

n122 See Santana & Tucker, supra note 2.

n123 See Henigan, supra note 3 (contemplating the consequences of cases
that might challenge D.C. firearm statutes and the potential arguments
advanced by prosecutors).

n124 See discussion infra Part III (assessing the scholarly opinion that
the reason the Supreme Court has not granted certiorari to a Second
Amendment case since Miller is because the Court believes Miller is
dispositive on the issue).

n125 United States v. Miller, 307 U.S. 174, 175, 178 (1939). Justice
Douglas took no part in the consideration or decision. Id. at 183; see
also Halbrook, supra note 98 (arguing that "the test was not whether the
person in possession of the arm was a member of a formal militia unit, but
whether the arm 'at this time' is 'ordinary military equipment' or its use
'could' potentially assist in the common defense"); McCoskey, supra note
3, at 881 (illustrating how both sides have used Miller to support their
interpretations of the Second Amendment).

n126 See e.g. Halbrook, supra note 98, at 76 (promulgating this theory and
his support--as counsel to the NRA--for the individual-rights view).

n127 See generally, Hardaway, supra note 14, at 112. The article states:
There are two possible interpretations of this holding. The first is that
the Second Amendment guarantees the right to bear arms to those who need
such arms in order to serve in the militia. The second is that every
citizen has a right to possess a weapon of the type used by a militia.
Under this reasoning, Miller grants an unrestricted right to possess
weapons if these are ordinary military equipment of the day. The first
interpretation has been uniformly adopted by all of the Circuit Courts.
The second interpretation of Miller, though not adopted by a single
Circuit Court, has nevertheless been put forth by the Gun Lobby.

Id.; Brannon P. Denning and Glenn H. Reynolds, Enduring and Empowering:
The Bill of Rights in the Third Millennium: Telling Miller's Tale: A Reply
to David Yassky, 65 LAW & CONTEMP. PROB. 113, 117 (2002) (stating that the
Court's rejection of the government's collective rights argument further
supported the contention that the Miller Court "implicitly adopted an
individual rights interpretation of the Second Amendment"); see also
Kopel, supra note 14, at 106-08 (stating that the author of the Miller
decision, Justice McReynolds, was "arguably one of the worst Supreme Court
Justices of the twentieth century," that the decision "can plausibly be
read to support either the Standard Model or the State's Rights theory,"
and "does not foreclose either," and that were it the only guide to the
Second Amendment, "the individual right vs. government right argument
might be impossible to resolve conclusively").

n128 See Hardaway, supra note 14, at 112-13 (suggesting that an
individual-rights interpretation of Miller, as adopted by the Emerson
court, "would allow regulation of private possession of any firearm that
would not be of use in a militia . . . such as shotguns, Saturday Night
Specials and antique guns," but not the regulation of private possession
of "useful military hardware such as bazookas, tanks, grenades, or small
tactical weapons"). Cf. Halbrook, supra note 98, at 76 (arguing that the
test set forth in Miller was correctly interpreted by Judge Cummings in
Emerson and by Attorney General Ashcroft in his letter to the NRA).

n129 For a recent case that scholars expected would raise the Second
Amendment question before the Supreme Court, see United States v. Bean, 89
F. Supp. 2d 828 (2000), cert. granted, 534 U.S. 1112 (2002) (Mem.). Bean
was a gun dealer who lost all right to possess firearms after being
convicted of a felony. Id. at 829-30. Bean later petitioned the Bureau of
Alcohol, Tobacco and Firearms (BATF) for relief under an exception within
the statute which gave BATF the authority to reinstate such privileges
where it was determined that the felon was no longer a danger to society.
Id. at 830. The BATF, however, sent Bean notice that it would not grant
his request due to the Congress's annual budget appropriation bill, which
provided that "none of the funds appropriated herein shall be available to
investigate or act upon applications for relief from Federal firearms
disabilities under 18 U.S.C. § 925(c)." Id. Bean then petitioned the
district court, arguing that BATF's denial was subject to judicial review.
Id. Bean was granted relief by the district court, and the case was
appealed to the Supreme Court. Tony Mauro, Second Amendment Stays in
Background in Gun Case, THE RECORDER, Oct. 17, 2002 at 3. Although Bean
never argued his case from a Second Amendment standpoint, typical Second
Amendment arguments appeared in some of the Supreme Court briefs, and many
were disappointed that the Second Amendment didn't "play at least a cameo
role during Supreme Court oral arguments." Id.

n130 Hardaway, supra note 14, at 46. The article states:
As long as each circuit court is following Miller . . . it may reasonably
be argued that there has been no need for the Court to accept certiorari
because the law is clear and the circuit courts are following it, and that
it is highly improbable that the Supreme Court would leave uncorrected
nine circuit court interpretations of such a high profile amendment of the
Bill of Rights.

Id.

n131 See McCoskey, supra note 3, at 889, 893-94. Although the court
refused to review the Emerson decision, the court may eventually grant
certiorari in another case in order to resolve the circuit split. Id. at
880. Additionally, McCoskey notes an unpredictable outcome if the Court
does grant certiorari. Id. at 894.

n132 Printz v. United States, 521 U.S. 898, 938-39 (1997) (Thomas, J.,
concurring); see also Kopel, supra note 14, at 121-25 (discussing Justice
Thomas's concurring opinion in Printz, and Thomas's belief that the
Supreme Court has not yet ruled on the individual rights issue). See also
McCoskey, supra note 3, at 894 (discussing the references made by Judge
Cummings and Judge Garwood to Justices Scalia and Thomas' writings
favoring an individual rights view). For the view of retired Chief Justice
Warren Burger, see BBC News, Analysis: What is the NRA? (Mar. 1, 2000)
available at http://news.bbc.co.uk/1/hi/world/americas/332555.stm.
(pointing out that the Second Amendment "is the subject of one of the
greatest pieces of fraud, I repeat the word fraud, on the American People
by special interest groups that I have seen in my lifetime").

n133 Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942); see also
discussion supra Part II.B1.

n134 Cases, 131 F.2d at 922.

n135 Id. at 922-23.

n136 Id.

n137 Id. at 923.

n138 See United States v. Emerson, 270 F.3d 203, 273 (5th Cir. 2001)
(Parker, J., specially concurring) (suggesting that a decision regarding
whether the right is collective or individual is "of no legal
consequence").

n139 Id.

n140 Wade Maxwell Rhyne, United States v. Emerson and the Second
Amendment, 28 HASTINGS CONST. L.Q. 505, 506 (2001) (predicting that if the
Fifth Circuit upheld Emerson, the conflict between the Fifth Circuit and
the other circuits would warrant review by the Supreme Court and a final
determination of whether the Second Amendment grants a collective or
individual right); see also Jack Trachtenberg, Comment, Federalism,
Popular Sovereignty, and the Individual Right to Keep and Bear Arms: A
Structural Alternative to United States v. Emerson, 50 BUFFALO L. REV.
445, 481 (2002) ("If the Court grants certiorari, it will likely be
presented with the duty of resolving the Circuit split on the meaning of
the Amendment. The Court would have the opportunity 'to either enshrine or
eliminate the Second Amendment right to keep and bear arms.'"). See
generally Roger I. Roots, The Approaching Death of the Collective Right
Theory of the Second Amendment, 39 DUQ. L. REV. 71, 73 (2000) (arguing
that the Emerson decision would spark "embarrassing scrutiny" of the
collective rights theory in the courts); Perez, supra note 11, at 368-69
(also arguing that Emerson will force the Supreme Court to resolve these
neglected matters).

n141 Perez, supra note 11, at 383-85. The author states:
First, the Supreme Court will have to undertake a thorough textual
analysis of the Second Amendment to devise its scope . . . . The Supreme
Court will have to address the issue of why, if the framers had meant only
to guarantee the rights of states to have militias and of their militiamen
to keep and bear arms, would they word the Second Amendment as they did .
. . . Secondly . . . the Supreme Court will have to discuss why James
Madison introduced the right to keep and bear arms amendment along with
other amendments that he described as protecting private and natural
rights . . . . Thirdly, the Supreme Court will have to discuss whether the
anti-tyranny function of the Second Amendment has become outdated.

Id. at 383-84.

(ONE more time!)

Jim March
August 4, 2004, 09:26 PM
n142 Emerson v. United States, 536 U.S. 907 (2002) (denying certiorari
without comment); see also Council, supra note 99 (arguing that the Fifth
Circuit's ruling "left both sides of the political spectrum claiming
victory" because the decision acknowledged both an individual right and
the legislative ability to limit that right).

n143 See Hardaway, supra note 14, at 46 (reciting the argument that the
reason the Court had previously denied certiorari in those cases was
because the Court believed that the circuits were correct in rejecting an
individual rights theory).

n144 See discussion supra Part II.B.6.

n145 Hardaway, supra note 14, at 47-48. In the article, the authors
speculate on the reasons why the Supreme Court has refused "to resolve one
of the most contentious constitutional debates of all time." Id. at 48.

n146 United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied,
536 U.S. 907 (2002) (refusing, without comment, to grant certiorari).

n147 See discussion infra Part IV.

n148 Levy, supra note 15. Levy states, "Michael Freeman is probably a bad
dude . . . Most likely, Freeman never imagined that he'd become a
constitutional test case. Yet his Second Amendment claim could end up
before the Supreme Court." Id.

n149 Id. (acknowledging Freeman as an unsympathetic defendant). But see
Santana & Tucker, supra note 2 (noting that another defendant, Bashaun
Pearson, who has appealed his case to the D.C. Court of Appeals, has a
more unique case because he was arrested only on the gun charge).

n150 See Letter from John Ashcroft, supra note 1, at n.1 ("Of course, the
individual rights view of the Second Amendment dos [sic] not prohibit
Congress from enacting laws restricting firearms ownership for compelling
state interests, such as prohibiting firearms ownership by convicted
felons, just as the First Amendment does not prohibit shouting 'fire' in a
crowded movie theater.").

n151 Levy, Will Individuals Get Their Second Amendment Rights?, supra note
15 (planting the idea in the heads of pro-gun group members in order to
produce "more-sympathetic litigants," and "validate the Justice
Department's newly announced position").

n152 Id.; see also Halbrook, supra note 98 (noting that "no federal court
has ever upheld a general prohibition by law-abiding citizens of
firearms"); Henigan, supra note 3. Henigan states:
The defendant in Freeman was a convicted felon, making it easy for the
government to argue that his gun possession would not be protected even
under the broad individual rights view. But for illegal possession cases
not involving convicted felons, the government's concession of a broad
individual right may have a materially adverse impact.

Id.

n153 Levy, Will Individuals Get Their Second Amendment Rights?, supra note
15 (outlining the reasons for the D.C. law's susceptibility to challenge).

n154 Id. Levy notes that "the law applies not just to 'unfit' persons like
felons, minors, or the mentally incompetent, but across the board to
ordinary, honest, responsible citizens." Id. Levy further contends that a
handgun, unlike the sawed-off shotgun in Emerson or the machine gun in
Haney, is a personal weapon used for an individual's self-defense. Id.

n155 Id. Cf. Sandidge v. United States, 520 A.2d 1057, 1059 (D.C. App.
1987) (Nebeker, J., concurring) (stating his conclusion that "the Second
Amendment does not apply to the seat of national government . . . .
Nothing suggests that the founders were concerned about 'free
territories,' 'free protectorates,' or a 'free Seat of Government of the
United States.'").

n156 Levy, Will Individuals Get Their Second Amendment Rights?, supra note
15.

n157 See discussion infra Part IV.

n158 Hardaway, supra note 14, at 48 (referring to the Second Amendment
issue as a "proverbial legal 'hot potato'").

n159 Id. at 49 (concluding that "the notion that the High Court is simply
too timid to resolve a contentious legal issue is . . . distinctly
unsatisfying, given that the settlement of such issues is one of the
primary reasons for the very existence of the High Court").

n160 Id. at 49-50 (comparing the Second Amendment issue to school prayer
and abortion).

n161 Id. at 49-51. The authors examine the Court's prior decisions in the
face of past controversial situations and argue that "the Court has an
admirable record of courage in deciding issues of great concern, and
providing leadership where the legislative bodies have been timid."

n162 See Printz v. United States, 521 U.S. 898, 937-39 (1997) (Thomas, J.,
concurring) (suggesting that he would welcome the opportunity to determine
whether the Second Amendment granted an individual or collective right).

n163 See Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942)
(suggesting that it is not the role of the federal courts to speculate on
whether the Second Amendment grants an individual or collective right,
where the determination of a specific case does not depend on such a
discussion).

n164 See United States v. Emerson, 270 F.3d 203, 273 (5th Cir. 2002)
(Parker, J., specially concurring).
The real issue, however, is the fact that whatever the nature or
parameters of the Second Amendment right, be it collective or individual,
it is a right subject to reasonable regulation. The debate, therefore,
over the nature of the right, is misplaced. In the final analysis, whether
the right to keep and bear arms is collective or individual is of no legal
consequence.

Id.

n165 Id. (stating that "no responsible individual or organization would
suggest" that the Second Amendment protects the right of Emerson or any
other defendant to possess every type of weapon created or supercedes the
rights of "others to be free from bodily harm or threats of harm").

n166 Id.

n167 Id.

n168 See, e.g., Branch-Brioso, supra note 3 (finding that the majority of
Second Amendment scholarship promulgates the individual-rights view, but
noting that a large percentage of such writings were authored by the NRA's
lead lawyer, Stephen Halbrook); see also Yassky, supra note 3, at 190-91
(1999) (arguing that the federal District Court in Texas relied on the
views advanced by individual-rights scholars in deciding United States v.
Emerson); Henigan, supra note 3 (stating that "there is no doubt that
Second Amendment challenges to gun laws will now become a standard part of
the criminal defense attorney's tool kit").

n169 See, e.g., Tucker & Santana, D.C. Handgun Ban Challenged, supra note
4 (stating that "the District is a logical place for the interpretation to
be tested"); Levy, Will Individuals Get Their Second Amendment Rights?,
supra note 4 (examining the factors which make D.C. gun laws so ripe for
constitutional challenge). Cf. Gregory L. Poe, Caught in the Crossfire:
Gun Control and the Second Amendment, Panel Discussion presented by the
Washington Council of Lawyers, Oct. 23, 2002 (stating his view that gun
advocates will want to delay bringing a valid test case before the Supreme
Court until a new justice with an individual rights view gets appointed
and that this type of litigation is not going anywhere right now on the
federal level).

n170 See discussion infra Part IV.

n171 United States v. Emerson, 270 F.3d 203, 272 (5th Cir. 2002) (Parker,
J., specially concurring) (quoting Spector Motor Serv., Inc. v.
McLaughlin, 323 U.S. 101, 105 (1944)). "If there is one doctrine more
deeply rooted than any other in the process of constitutional
adjudication, it is that we ought not to pass on questions of
constitutionality . . . unless such adjudication is unavoidable." Spector
Motor Serv., Inc. v. McLaughlin, 323 U.S. at 105 (1944). Judge Parker,
ironically, quotes Judge Garwood's concurring opinion in Walton v.
Alexander, 20 F.3d 1350, 1356 (5th Cir. 1994) (Garwood, J., concurring
specially), which stated that, "it is settled that courts have a strong
duty to avoid constitutional issues that need not be resolved in order to
determine the rights of the parties to the case under consideration." Id.

n172 For possible prediction of what the ideal test case might look like,
see Levy, supra note 4 (suggesting that if law-abiding citizens challenged
their inability to obtain a lawful license to carry a handgun in the
District, they may find more success); see also Stephen P. Halbrook,
Caught in the Crossfire: Gun Control and the Second Amendment, Panel
Discussion presented by the Washington Council of Lawyers Oct. 23, 2002
(suggesting that the ideal test case would have been a case in Texas
challenging the application of the Gun Free Schools Act to home schools;
that case, however, was dismissed for want of prosecution).

n173 See discussion supra Part IV.

(YES it's done :D)

bamawrx
August 4, 2004, 10:35 PM
Well Jim, if I read that correctly the author doesn't think the SC will get a case that will depend on the specific issue of collective vs. individual rights. Would the DC cases accomplish this?

effengee
August 8, 2004, 09:01 AM
I've been private messaging Bamawrx on this subject, but haven't directly posted here for some time...
I've sat down and completely re-read all the posts.

What started as a simple plan to start a court case against the Gov't. has turned into a frenzy of legal definitions and what exactly the 2A means...

God, I love a good debate!!!!:D

It's good to know that we still live in the United States of America.
A country founded upon giving the oppressors the bird while gladly helping those who are too weak to do so for themselves... well, sort of...:rolleyes:

As myself and GRAYSTAR have said, the militia clause of the 2nd applies to a military unit. Granted, it's comprised of civillians, but regardless of what defines a militia, it's sole purpose is to notify ANY governing body that we control our collective freedom and our individual lives.
We will never bow down to a fuedal Lord, or be subject to the whims of a dictatorship. The very fact that millions of us own firearms sets more of a boundary than any written law can do...
It's a proven fact that a foriegn/domestic professional military can be forced to change it's policies when faced with "A well-regulated militia"

The constitutiton, the bill of rights, the declaration of independence, they belong to us... "We, the people..."
I don't need a piece of paper to tell me that I have a right to keep arms for the protection of myself and my family...
I don't need a piece of paper to tell me that I can worship how I see fit.

I live in America... Land of the free and home of the brave.

"They can take away my gun anytime they want, but they'll have to surgically remove it from my rigor mortised hands. JH"

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