5th Federal District Court rules on Emerson:
ca5.uscourts.gov
V. Second Amendment
The Second Amendment provides:
"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."
A. Introduction and Overview of Second Amendment Models
The district court held that the Second Amendment recognizes the right of individual citizens to own and possess firearms, and declared that section 922(g)(8) was unconstitutional on its face because it requires that a citizen be disarmed merely because of being subject to a "boilerplate [domestic relations injunctive] order with no particularized findings." Emerson, 46 F.Supp.2d at 611. The government opines that stare decisis requires us to reverse the district court's embrace of the individual rights model. Amici for the government argue that even if binding precedent does not require reversal, the flaws in the district court's Second Amendment analysis do.
In the last few decades, courts and commentators have offered what may fairly be characterized as three different basic interpretations of the Second Amendment. The first is that the Second Amendment does not apply to individuals; rather, it merely recognizes the right of a state to arm its militia.(9) This "states' rights" or "collective rights" interpretation of the Second Amendment has been embraced by several of our sister circuits.(10) The government commended the states' rights view of the Second Amendment to the district court, urging that the Second Amendment does not apply to individual citizens.
Proponents of the next model admit that the Second Amendment recognizes some limited species of individual right. However, this supposedly "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 organized militia's activities. The "individual" right to keep arms only applies to members of such a militia, and then only if the federal and state governments fail to provide the firearms necessary for such militia service. At present, virtually the only such organized and actively functioning militia is the National Guard, and this has been the case for many years. Currently, the federal government provides the necessary implements of warfare, including firearms, to the National Guard, and this likewise has long been the case. Thus, under this model, the Second Amendment poses no obstacle to the wholesale disarmament of the American people. A number of our sister circuits have accepted this model, sometimes referred to by commentators as the sophisticated collective rights model.(11) On appeal the government has abandoned the states' rights model and now advocates the sophisticated collective rights model.
The third model is simply that the Second Amendment recognizes the right of individuals to keep and bear arms. This is the view advanced by Emerson and adopted by the district court. None of our sister circuits has subscribed to this model, known by commentators as the individual rights model or the standard model. The individual rights view has enjoyed considerable academic endorsement, especially in the last two decades.(12)
We now turn to the question of whether the district court erred in adopting an individual rights or standard model as the basis of its construction of the Second Amendment.
B. Stare Decisis and United States v. Miller
The government steadfastly maintains that the Supreme Court's decision in United States v. Miller, 59 S.Ct. 816 (1939), mandated acceptance of the collective rights or sophisticated collective rights model, and rejection of the individual rights or standard model, as a basis for construction of the Second Amendment. We disagree.
Only in United States v. Miller has the Supreme Court rendered any holding respecting the Second Amendment as applied to the federal government.(13) There, the indictment charged the defendants with transporting in interstate commerce, from Oklahoma to Arkansas, an unregistered "Stevens shotgun having a barrel less than 18 inches in length" without having the required stamped written order, contrary to the National Firearms Act.(14) The defendants filed a demurrer challenging the facial validity of the indictment on the ground that "[t]he National Firearms Act . . . offends the inhibition of the Second Amendment," and "[t]he District Court held that section 11 of the Act [proscribing interstate transportation of a firearm, as therein defined, that lacked registration or a stamped order] violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment." Id. at 817-18. The government appealed, and we have examined a copy of its brief.(15) The Miller defendants neither filed any brief nor made any appearance in the Supreme Court.
The government's Supreme Court brief "[p]reliminarily" points out that:
". . . the National Firearms Act does not apply to all firearms but only to a limited class of firearms. The term 'firearm' is defined in Section 1 of the Act. . . to refer only to 'a shotgun or rifle having a barrel of less than 18 inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition.'" (id. at 6).
In this connection the brief goes on to assert that it is "indisputable that Congress was striking not at weapons intended for legitimate use but at weapons which form the arsenal of the gangster and the desperado" (id. at 7) and that the National Firearms Act restricts interstate transportation "of only those weapons which are the tools of the criminal" (id. at 8).
The government's brief thereafter makes essentially two legal arguments.
First, it contends that the right secured by the Second Amendment is "only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state." Id. at 15. This, in essence, is the sophisticated collective rights model.
The second of the government's two arguments in Miller is reflected by the following passage from its brief:
"While some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property as well as the right of the people to bear them collectively (People v. Brown, 253 Mich. 537; State v. Duke, 42 Tex. 455), the cases are unanimous in holding that the term "arms" as used in constitutional provisions refers only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals. Thus in Aymette v. State [2 Humph., Tenn. 154 (1840)], supra, it was said (p. 158):
'As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution.'" (Id. at 18-19).(16)
The government's Miller brief then proceeds (at pp. 19-20) to cite various other state cases, and Robertson v. Baldwin, 17 S.Ct. 326, 329 (1897),(17) in support of its second argument, and states:
"That the foregoing cases conclusively establish that the Second Amendment has relation only to the right of the people to keep and bear arms for lawful purposes and does not conceivably relate to weapons of the type referred to in the National Firearms Act cannot be doubted. Sawed-off shotguns, sawed-off rifles and machine guns are clearly weapons which can have no legitimate use in the hands of private individuals."
Thereafter, the government's brief in its "conclusion" states: ". . . we respectfully submit that Section 11 of the National Firearms Act does not infringe 'the right of the people to keep and bear arms' secured by the Second Amendment."
Miller reversed the decision of the district court and "remanded for further proceedings." Id. at 820. We believe it is entirely clear that the Supreme Court decided Miller on the basis of the government's second argument-that a "shotgun having a barrel of less than eighteen inches in length" as stated in the National Firearms Act is not (or cannot merely be assumed to be) one of the "Arms" which the Second Amendment prohibits infringement of the right of the people to keep and bear-and not on the basis of the government's first argument (that the Second Amendment protects the right of the people to keep and bear no character of "arms" when not borne in actual, active service in the militia or some other military organization provided for by law"). Miller expresses its holding, as follows:
"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn. 154, 158." Id. at 818 (emphasis added).
Note that the cited page of Aymette (p. 158) is the page from which the government's brief quoted in support of its second argument (see text at call for n.16 supra).(18)
Nowhere in the Court's Miller opinion is there any reference to the fact that the indictment does not remotely suggest that either of the two defendants was ever a member of any organized, active militia, such as the National Guard, much less that either was engaged (or about to be engaged) in any actual military service or training of such a militia unit when transporting the sawed-off shotgun from Oklahoma into Arkansas. Had the lack of such membership or engagement been a ground of the decision in Miller, the Court's opinion would obviously have made mention of it. But it did not.(19)
Nor do we believe that any other portion of the Miller opinion supports the sophisticated collective rights model.
Just after the above quoted portion of its opinion, the Miller court continued in a separate paragraph initially quoting the militia clauses of article 1, § 8 (clauses 15 and 16)(20) and concluding:
"With obvious purpose to assure the continuation and render possible the effectiveness of such forces [militia] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." Id. at 818.
Miller then proceeds to discuss what was meant by the term "militia," stating in part:
"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. . . . ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
. . .
"The American Colonies In the 17th Century," Osgood, Vol. 1, ch. XIII, affirms in reference to the early system of defense in New England-
"In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.'" Id. at 818 (emphasis added).
"The General Court of Massachusetts, January Session 1784 (Laws and Resolves 1784, c. 55, pp. 140, 142), provided for the organization and government of the Militia. It directed that the Train Band should 'contain all able bodied men, from sixteen to forty years of age, and the Alarm List, all other men under sixty years of age, * * *.'" Id. at 819 (emphasis added).
These passages from Miller suggest that the militia, the assurance of whose continuation and the rendering possible of whose effectiveness Miller says were purposes of the Second Amendment, referred to the generality of the civilian male inhabitants throughout their lives from teenage years until old age and to their personally keeping their own arms, and not merely to individuals during the time (if any) they might be actively engaged in actual military service or only to those who were members of special or select units.
We conclude that Miller does not support the government's collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter it cuts against the government's position. Nor does the government cite any other authority binding on this panel which mandates acceptance of its position in this respect.(21) However, we do not proceed on the assumption that Miller actually accepted an individual rights, as opposed to a collective or sophisticated collective rights, interpretation of the Second Amendment. Thus, Miller itself does not resolve that issue.(22) We turn, therefore, to an analysis of history and wording of the Second Amendment for guidance. In undertaking this analysis, we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment.
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