2A Court Challenge

[Henry Bowman]

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]

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]

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]

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]

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]

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]

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]

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]

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 )

 

[bamawrx]

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]

The thrill of the debate...

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!!!!

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...

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"