UNITED STATES v. WRIGHT 117 F.3d 1265 (11th Cir. 1997)

Kravitch, Judge.

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The Second Amendment to the United States Constitution 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." In this case, we must decide whether this amendment grants constitutional protection to an individual whose possession or use of machineguns and pipe bombs is not reasonably related to an organized state militia. . . .

I. Background

In June 1994, the Bureau of Alcohol Tobacco and Firearms received information that Donald Wright was looking for someone to reassemble a .50 caliber machinegun. Subsequently, two undercover local law enforcement agents were introduced to Wright as individuals capable of reassembling this gun. At this meeting, Wright produced the disassembled machinegun and told the agents that, once it was reassembled, he planned to shoot the gun, grease it, and then bury it. Agents arrested Wright in possession of the disassembled machinegun as he drove away from the meeting. Upon arrest, Wright consented to a search of his residence during which agents discovered a .223 caliber Olympic Arms model Car-AR automatic assault machinegun and three pipe bombs in a shed outside his home. Agents also found several other unregistered assault weapons, ammunition, and assorted documents and videotapes describing threats to United States sovereignty posed by the "New World Order."

Wright was charged with one count of possessing machineguns in violation of 18 U.S.C. § 922(o) and with one count of possessing unregistered destructive devices in violation of 26 U.S.C. § 5861(d). He filed a motion to dismiss the indictment on the grounds that the charging statutes violated, among other constitutional provisions, the Commerce Clause and the Second Amendment. In support of his motion, Wright submitted the seized documents and videotapes to demonstrate that his weapons possession was motivated by what he perceived to be the danger of the "New World Order." He also offered the testimony of a firearms expert to establish that the machineguns and pipe bombs were the type of weapons used by contemporary militias. The district court, adopting the magistrate judge's report and recommendation, denied his motion.

. . . .

II. Discussion

. . . .

B. Second Amendment

Wright . . . contends that §§ 922(o) and 5861(d) violate his right to bear arms under the Second Amendment. As a member of Georgia's unorganized militia, Wright claims that he has a constitutional right to possess machineguns and pipe bombs because these weapons are used by contemporary militia fighting forces. . . .

. . . [T]he Supreme Court has provided us with important guidance in interpreting this constitutional provision. In United States v. Miller, 307 U.S. 174 (1939), the Court considered whether the National Firearms Act of 1934, 26 U.S.C. § 1132, which required the registration of certain firearms, violated the Second Amendment rights of two individuals indicted for transporting unregistered sawed-off shotguns in interstate commerce. In reversing the district court's order . . . the Court stated:

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.

Because the Court concluded that there was no evidence that the sawed-off shotgun was "any part of the ordinary military equipment or that its use could contribute to the common defense," the Court held that the statute did not violate the Second Amendment rights of the defendants.

The fact that the Miller Court did not examine the possession or use of the sawed-off shotguns in that case in no way suggests, as appellant contends, that individual possession of a military-type weapon is protected by the Constitution irrespective of whether the possession or use of that weapon is reasonably related to a "well regulated militia." Without any evidence that the sawed-off shotgun at issue in that case could have been used as a weapon by a well regulated militia group to provide for the common defense, there was no need for the Court to determine if the actual possession or use of the weapons bore a reasonable relationship to a well regulated militia.

Therefore, in order to claim Second Amendment protection, Wright must demonstrate a reasonable relationship between his possession of the machineguns and pipe bombs and "the preservation or efficiency of a well regulated militia." Wright claims that he has satisfied this test because his weapons possession is reasonably related to his membership in Georgia's unorganized militia, which he asserts is "well regulated" within the meaning of the Second Amendment.

Because the sawed-off shotguns in Miller were not susceptible to use in any militia, the Court did not need to determine explicitly what constituted a "well regulated militia." A careful reading of Miller, however, strongly suggests that only militias actively maintained and trained by the states can satisfy the "well regulated militia" requirement of the Second Amendment. As the Miller Court emphasized, the "obvious purpose" of the Second Amendment was to "render possible the effectiveness of" the governmental militia described in the Militia Clauses of the Constitution.

At the time of ratification, and as remains the case today, the militia was defined broadly and was understood to include "all males physically capable of acting in concert for the common defense." But because the Constitution protects only the possession or use of guns reasonably related to a "well regulated militia," membership in this broad segment of the population is constitutionally insignificant. In determining the scope of Second Amendment protection, the Miller Court did not rely on the commonly understood and wide-reaching definition of the militia, but rather turned to early militia laws of New York, Massachusetts, and Virginia, which provided for the training, maintenance, and equipping of these states' respective militias. We find the Miller Court's reliance on these statutory provisions regulating "the organization and government of the Militia," to be significant. In our view, it indicates that the Miller Court understood the Second Amendment to protect only the possession or use of weapons that is reasonably related to a militia actively maintained and trained by the states.

Moreover, after examining the text and history of the Second Amendment, we conclude that this reading of Miller is consistent with the motivating purposes of the drafters of the Second Amendment. The amendment describes a "well regulated militia" as "being necessary to the security of a free State." The fact that the drafters qualified "well regulated militia" by reference to state security suggests to us that they intended this term to refer only to governmental militias that are actively maintained and used for the common defense. We find substantial support for this textual reading in the history of the drafting and ratification of the Constitution and the Bill of Rights.

The Militia Clauses in Article I authorized Congress to organize, arm, and discipline the militia, but reserved to the states the authority to train the militia and appoint its officers. This dual grant of authority reflected the tension between two competing concerns at the Constitutional Convention: the widespread distrust of a national standing army versus the danger of relying on inadequately trained soldiers as the primary means of providing for the common defense. . . . The Second Amendment was inserted into the Bill of Rights to protect the role of the states in maintaining and arming the militia. It was designed to protect the state militias from federal legislation enacted to undermine the role of state militias. . . .

The concerns motivating the creation of the Second Amendment convince us that the amendment was intended to protect only the use or possession of weapons that is reasonably related to a militia actively maintained and trained by the states. With this conclusion, we join every other federal court that has been called on to consider the "well regulated militia" requirement of the Second Amendment, several of which have considered and rejected the claim made by Wright in this case that membership in a state's unorganized militia is sufficient to bring gun possession within the protection of the Second Amendment.

Faced with this overwhelming body of contrary authority, Wright nevertheless maintains that Georgia's unorganized militia is sufficiently well regulated to trigger constitutional protection. He notes that under Georgia law the Governor has the authority to prescribe and to establish regulations governing the unorganized militia. Wright

also refers to statutes that allow, under certain circumstances, "the Governor [to] call for and accept from the unorganized militia as many volunteers as are required for service in the organized militia."

In our view, these statutes fall far short of rendering the Georgia unorganized militia "well regulated" for the purposes of the Second Amendment. The possibility that in responding to a future crisis state authorities might seek the aid of members of the unorganized militia does not speak to the militia's current state of regulation. Wright has not directed us to any Georgia statutes governing the actual, as opposed to potential, organization, training, and equipping of the members of the unorganized militia. . . .

Because Wright has presented no evidence to demonstrate any connection, let alone a "reasonable relationship," between his possession of the machineguns and pipe bombs and the preservation or efficiency of a militia actively trained and maintained by the State of Georgia, his weapons possession is entitled to no constitutional protection. Therefore, we conclude in this case that neither § 922(o)’s blanket ban of machinegun possession nor the registration requirements of § 5861(d) infringe on any constitutionally protected liberties.

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SILVEIRA v. LOCKYER312 F.3d 1052 (9th Cir. 2002)

Reinhardt, Judge.

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In 1999, the State of California enacted amendments to its gun control laws that significantly strengthened the state's restrictions on the possession, use, and transfer of the semi-automatic weapons popularly known as "assault weapons." Plaintiffs, California residents who either own assault weapons, seek to acquire such weapons, or both, brought this challenge to the gun control statute, asserting that the law, as amended, violates the Second Amendment, the Equal Protection Clause, and a host of other constitutional provisions. . . .

I. INTRODUCTION

In response to a proliferation of shootings involving semi-automatic weapons, the California Legislature passed the Roberti-Roos Assault Weapons Control Act ("the AWCA") in 1989. The immediate cause of the AWCA's enactment was a random shooting earlier that year at the Cleveland Elementary School in Stockton, California. An individual armed with an AK-47 semi-automatic weapon opened fire on the schoolyard, where three hundred pupils were enjoying their morning recess. Five children aged 6 to 9 were killed, and one teacher and 29 children were wounded.

. . . [T]he AWCA, was the first legislative restriction on assault weapons in the nation, and was the model for a similar federal statute enacted in 1994. The AWCA renders it a felony offense to manufacture in California any of the semi-automatic weapons specified in the statute, or to possess, sell, transfer, or import into the state such weapons without a permit. The statute contains a grandfather clause that permits the ownership of assault weapons by individuals who lawfully purchased them before the statute's enactment, so long as the owners register the weapons with the state Department of Justice. The grandfather clause, however, imposes significant restrictions on the use of weapons that are registered pursuant to its provisions. Approximately forty models of firearms are listed in the statute as subject to its restrictions. The specified weapons include "civilian" models of military weapons that feature slightly less firepower than the military-issue versions, such as the Uzi, an Israeli-made military rifle; the AR-15, a semi-automatic version of the United States military's standard-issue machine gun, the M-16; and the AK-47, a Russian-designed and Chinese-produced military rifle. The AWCA also includes a mechanism for the Attorney General to seek a judicial declaration in certain California Superior Courts that weapons identical to the listed firearms are also subject to the statutory restrictions.

. . . .

In 1999, the legislature amended the AWCA in order to broaden its coverage and to render it more flexible in response to technological developments in the manufacture of semi-automatic weapons. The amended AWCA retains both the original list of models of restricted weapons, and

the judicial declaration procedure by which models may be added to the list. The 1999 amendments to the AWCA statute add a third method of defining the class of restricted weapons: The amendments provide that a weapon constitutes a restricted assault weapon if it possesses certain generic characteristics listed in the statute. . . .

Plaintiffs in this case are nine individuals, some of whom lawfully acquired weapons that were subsequently classified as assault weapons under the amended AWCA. They filed this action in February, 2000, one month after the 1999 AWCA amendments took effect. Plaintiffs who own assault weapons challenge the AWCA requirements that they either register, relinquish, or render inoperable their assault weapons as violative of their Second Amendment rights. Plaintiffs who seek to purchase weapons that may no longer lawfully be purchased in California also attack the ban on assault weapon sales as being contrary to their rights under that Amendment. Additionally, plaintiffs who are not active or retired California peace officers challenge on Fourteenth Amendment Equal Protection grounds two provisions of the AWCA: one that allows active peace officers to possess assault weapons while off-duty, and one that permits retired peace officers to possess assault weapons they acquire from their department at the time of their retirement. . . .

II. DISCUSSION

A. Background and Precedent.

A robust constitutional debate is currently taking place in this nation regarding the scope of the Second Amendment, a debate that has gained intensity over the last several years. . . . There are three principal schools of thought that form the basis for the debate. The first, which we will refer to as the "traditional individual rights" model, holds that the Second Amendment guarantees to individual private citizens a fundamental right to possess and use firearms for any purpose at all, subject only to limited government regulation. This view, urged by the NRA and other firearms enthusiasts, as well as by a prolific cadre of fervent supporters in the legal academy, had never been adopted by any court until the recent Fifth Circuit decision in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). The second view, a variant of the first, we will refer to as the "limited individual rights" model. Under that view, individuals maintain a constitutional right to possess firearms insofar as such possession bears a reasonable relationship to militia service. The third, a wholly contrary view, commonly called the "collective rights" model, asserts that the Second Amendment right to "bear arms" guarantees the right of the people to maintain effective state militias, but does not provide any type of individual right to own or possess weapons. Under this theory of the amendment, the federal and state governments have the full authority to enact prohibitions and restrictions on the use and possession of firearms, subject only to generally applicable constitutional constraints, such as due process, equal protection, and the like. Long the dominant view of the Second Amendment, and widely accepted by the federal courts, the collective rights model has recently come under strong criticism from individual rights advocates. After conducting a full analysis of the amendment, its history, and its purpose, we reaffirm our conclusion in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), that it is this collective rights model which provides the best interpretation of the Second Amendment.

[The court then discussed the limited relevance of the Supreme Court’s decision in United States v. Miller.]

. . . .

In light of the United States government's recent change in position on the meaning of the amendment, the resultant flood of Second Amendment challenges in the district courts, the Fifth Circuit's extensive study and analysis of the amendment and its conclusion that Miller does not mean what we and other courts have assumed it to mean, the proliferation of gun control statutes both state and federal, and the active scholarly debate that is being waged across this nation, we believe it prudent to explore Appellants' Second Amendment arguments in some depth, and to address the merits of the issue, even though this circuit's position on the scope and effect of the amendment was established in Hickman. B. Appellants Lack Standing to Challenge the Assault Weapons Control Act on Second Amendment Grounds.

Appellants contend that the California Assault Weapons Control Act and its 1999 revisions violate their Second Amendment rights. We unequivocally reject this contention. We conclude that although the text and structure of the amendment, standing alone, do not conclusively resolve the question of its meaning, when we give the text its most plausible reading and consider the amendment in light of the historical context and circumstances surrounding its enactment we are compelled to reaffirm the collective rights view we adopted in Hickman: The amendment protects the people's right to maintain an effective state militia, and does not establish an individual right to own or possess firearms for personal or other use. . . . Because we hold that the Second Amendment does not provide an individual right to own or possess guns or other firearms, plaintiffs lack standing to challenge the AWCA.

The Second Amendment states in its entirety: "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." As commentators on all sides of the debate regarding the amendment's meaning have acknowledged, the language of the amendment alone does not conclusively resolve the question of its scope. . . . What renders the language and structure of the amendment particularly striking is the existence of a prefatory clause, a syntactical device that is absent from all other provisions of the Constitution, including the nine other provisions of the Bill of Rights. Our analysis thus must address not only the meaning of each of the two clauses of the amendment but the unique relationship that exists between them.

a. The Meaning of the Amendment's First Clause: "A Well Regulated Militia Being Necessary to the Security of A Free State."

The first or prefatory clause of the Second Amendment sets forth the amendment's purpose and intent. An important aspect of ascertaining that purpose and intent is determining the import of the term "militia." Many advocates of the traditional individual rights model, including the Fifth Circuit, have taken the position that the term "militia" was meant to refer to all citizens, and, therefore, that the first clause simply restates the second in more specific terms. . . . Relying on their

definition of "militia," they conclude that the prefatory clause was intended simply to reinforce the grant of an individual right that they assert is made by the second clause. . . .

We agree that the interpretation of the first clause and the extent to which that clause shapes the content of the second depends in large part on the meaning of the term "militia." If militia refers, as the Fifth Circuit suggests, to all persons in a state, rather than to the state military entity, the first clause would have one meaning -- a meaning that would support the concept of traditional individual rights. If the term refers instead, as we believe, to the entity ordinarily identified by that designation, the state-created and organized military force, it would likely be necessary to attribute a considerably different meaning to the first clause of the Second Amendment and ultimately to the amendment as a whole.

We believe the answer to the definitional question is the one that most persons would expect: "militia" refers to a state military force. We reach our conclusion not only because that is the ordinary meaning of the word, but because contemporaneously enacted provisions of the Constitution that contain the word "militia" consistently use the term to refer to a state military entity, not to the people of the state as a whole. We look to such contemporaneously enacted provisions for an understanding of words used in the Second Amendment in part because this is an interpretive principle recently explicated by the Supreme Court in a case involving another word that appears in that amendment -- the word "people." That same interpretive principle is unquestionably applicable when we construe the word "militia."

"Militia" appears repeatedly in the first and second Articles of the Constitution. . . . Nevertheless, the contexts in which the term is used demonstrate that even without the prefatory word, "militia" refers to state military organizations and not to their members or potential members throughout these two Articles. . . .

. . . .

Finally, our definition of "militia" is supported by the inclusion of the modifier "well regulated.". . .

b. The Meaning of the Amendment's Second Clause: "The Right of the People to Keep and Bear Arms Shall Not Be Infringed."

. . . We consider it highly significant . . . that the second clause does not purport to protect the right to "possess" or "own" arms, but rather to "keep and bear" arms. This choice of words is important because the phrase "bear arms" is a phrase that customarily relates to a military function.

Historical research shows that the use of the term "bear arms" generally referred to the carrying of arms in military service -- not the private use of arms for personal purposes. . . .

We also believe it to be significant that the first version of the amendment proposed by Madison to the House of Representatives concluded with an exemption from "bearing arms" for the "religiously

scrupulous." . . . Accordingly, the exemption from bearing arms for the religiously scrupulous can only be understood as an exemption from carrying arms in the service of a state militia, and not from possessing arms in a private capacity. . . .

Finally, we address the use of the term "keep" in the second clause. The reason why that term was included in the amendment is not clear. . . . Arms can be "kept" for various purposes -- military, social, or criminal. The question with respect to the Second Amendment is not whether arms may be kept, but by whom and for what purpose. If they may be kept so that the possessor is enabled to "bear arms" that are required for military service, the words would connote something entirely different than if they may be kept for any individual purpose whatsoever. In this connection, some scholars have suggested that "keep and bear" must be construed together (like "necessary and proper") as a unitary phrase that relates to the maintenance of arms for military service. . . . In the end, however, the use of the term "keep" does not appear to assist either side in the present controversy to any measurable extent.

c. The Relationship Between the Two Clauses.

. . . As we have noted, and as is evident from the structure of the Second Amendment, the first clause explains the purpose of the more substantive clause that follows, or, to put it differently, it explains the reason necessitating or warranting the enactment of the substantive provision. Moreover, in this case, the first clause does more than simply state the amendment's purpose or justification: it also helps shape and define the meaning of the substantive provision contained in the second clause, and thus of the amendment itself. . . .

When the second clause is read in light of the first . . . we believe that the most plausible construction of the Second Amendment is that it seeks to ensure the existence of effective state militias in which the people may exercise their right to bear arms, and forbids the federal government to interfere with such exercise. This conclusion is based in part on the premise, explicitly set forth in the text of the amendment, that the maintenance of effective state militias is essential to the preservation of a free State, and in part on the historical meaning of the right that the operative clause protects -- the right to bear arms. . . .

In the end, however, given the history and vigor of the dispute over the meaning of the Second Amendment's language, we would be reluctant to say that the text and structure alone establish with certainty which of the various views is correct. Fortunately, we have available a number of other important sources that can help us determine whether ours is the proper understanding. These include records that reflect the historical context in which the amendment was adopted, and documents that contain significant portions of the contemporary debates relating to the adoption and ratification of the Constitution and the Bill of Rights. . . .

[The court then engages in an extended review of the historical context in which the Second Amendment was debated and adopted.]

What our historical inquiry reveals is that the Second Amendment was enacted in order to assuage the fears of Anti-Federalists that the new federal government would cause the state militias to atrophy by refusing to exercise its prerogative of arming the state fighting forces, and that the states would, in the absence of the amendment, be without the authority to provide them with the necessary arms. Thus, they feared, the people would be stripped of their ability to defend themselves against a powerful, over-reaching federal government. The debates of the founding era demonstrate that the second of the first ten amendments to the Constitution was included in order to preserve the efficacy of the state militias for the people's defense -- not to ensure an individual right to possess weapons. Specifically, the amendment was enacted to guarantee that the people would be able to maintain an effective state fighting force -- that they would have the right to bear arms in the service of the state.

. . . .

. . . Our review of the debates during the Constitutional Convention, the state ratifying conventions, and the First Congress, as well as the other historical materials we have discussed, confirmed what the text strongly suggested: that the amendment was adopted in order to protect the people from the threat of federal tyranny by preserving the right of the states to arm their militias. The proponents of the Second Amendment believed that only if the states retained that power could the existence of effective state militias -- in which the people could exercise their right to "bear arms" -- be ensured. The historical record makes it equally plain that the amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession. Accordingly, we are persuaded that we were correct in Hickman that the collective rights view, rather than the individual rights models, reflects the proper interpretation of the Second Amendment. Thus, we hold that the Second Amendment imposes no limitation on California's ability to enact legislation regulating or prohibiting the possession or use of firearms, including dangerous weapons such as assault weapons. Plaintiffs lack standing to assert a Second Amendment claim, and their challenge to the Assault Weapons Control Act fails.

[The court then held that the exceptions allowed for off-duty law enforcement officers did not violate principles of equal protection, but that there was no rational basis for an exception to allow for possession of prohibited weapons by retired police officers.]

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NORDYKE v. KING364 F.3d. 1025 (9th Cir. 2004)

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[Introductory note: In an earlier phase of this litigation, a three-judge panel of the Ninth Circuit refused to hear a Second Amendment challenge to an ordinance of Alameda County, California, which prohibited the possession of firearms on county property and thus barred the plaintiffs’ participation in a gun show held at the county’s fairgrounds. Nordyke v. King, 319 F.3d 1185 (9th Cir. 1185 (2000). That three-judge panel viewed itself as bound by a prior en banc ruling of the 9th Circuit, Hickman v. Block, which essentially read the Second Amendment as a protecting a collective, and not an individual, right. The panel took note of the 9th Circuit’s post-Hickman decision in Lockyer, supra, but criticized the Lockyer court (also a three-judge panel) for not likewise considering itself bound by Hickman, which would have precluded its engaging in its own lengthy analysis of the Second Amendment.

That history brings us to the proceedings of which the opinion below is apart. The opinion excerpted below is a dissent to the decision by a majority of the justices on the Ninth Circuit denying the Nordyke plaintiffs’ petition for a rehearing, before the circuit court en banc, of the three-judge panel’s refusal to hear the Second Amendment challenge. In substance, the dissent is a rejection of Hickman, Lockyer, and the three-judge decision in Nordyke.]

Gould, Judge, dissenting.

I respectfully dissent from our denial of rehearing en banc. This case presents an important issue of the scope of the constitutional guarantee of the Second Amendment, arising in the context of state restriction of gun shows. The panel decision in this case was compelled by our circuit's prior holding . . . in which we embraced a "collective rights" reading of the Second Amendment. . . . An "individual rights" interpretation, as was recently adopted by the Fifth Circuit [in United States v. Emerson] . . . is more consistent with the text, structure, purposes, and history of the Second Amendment, as well as colonial experience and pre-adoption history. It also reflects what I consider to be the scholarly consensus that has recently developed on the question of how to best interpret the Second Amendment. We should recognize that individual citizens have a constitutional right to keep and bear arms, subject -- in the same manner as all other core constitutional rights -- to certain limits. Thereafter, the chips will fall where they may, and decisions in due course will clarify what is and is not constitutionally permissible regulation, and the further standards for addressing it.

. . . .I

The Second Amendment . . . contains a substantive guarantee and a prefatory clause. The collective rights view of the Second Amendment places undue weight on a confused interpretation of the prefatory clause to reach the conclusion that the Second Amendment grants only a

collective right. . . . [E]ven if it were assumed that the Second Amendment's prefatory clause did limit the scope of the substantive guarantee to those in the "militia," the militia should be defined to encompass the people as a whole. The plain meaning of the language of the Second Amendment mandates an individual rights interpretation.

As with all of the first eight amendments of the Bill of Rights, the Second Amendment makes clear that its purpose is to grant a right to the people. As used throughout the text of the Constitution, "rights" and "powers" are granted to the people, whereas government only has "power" or "authority.". . . The Second Amendment states that the right it provides for is one "of the people." Apart from the Second Amendment, the phrase "the people" appears in four other places in the Bill of Rights. There is no question that "the people," as used in the First, Fourth, Ninth, and Tenth Amendments refers to individuals. . . .

The right granted to the people by the Second Amendment is one to "keep and bear arms." Those who support the collective rights view maintain that "keep and bear" should be read as a unitary phrase . . . or that the word "keep," as used in the Second Amendment, has no independent content because the Second Amendment does not protect a right to "own" or to "possess" arms . . . . Collective rights supporters argue further that the term "bear arms" refers only to members of an organized militia during actual service. . . . These interpretations of "keep and bear arms" are inconsistent with basic principles of constitutional interpretation, and conflict with the historical use and meaning of the words "keep" and "bear."

. . . .

I also disagree with the conclusion of collective rights proponents that the term "bear arms" has only military connotations. In Emerson, the Fifth Circuit conducted an extensive analysis of the use of "bear arms" in early state constitutions and declarations of rights. From this analysis, the Emerson court concluded that early nineteenth century constitutions and declarations of rights in at least ten different states gave "people" or "citizens" the right to "bear arms" in their own personal defense. Such widespread use of the phrase "bear arms" in state grants of individual rights undercuts the argument that the drafters of the Second Amendment chose this phrase as a manner of indicating a collective right.

However, even if "bear" is presumed to have a military definition, the Second Amendment's further use of the word "keep" takes the scope of the Second Amendment beyond the right to bear arms in military defense. Had the drafters of the Second Amendment intended only to grant the people a right to carry arms while serving in the organized militia, the use of "bear" alone would have been sufficient. The most common definition of "keep," both today as well as at the time the Second Amendment was drafted, is to have custody or possession of. . . .

. . . .

The Second Amendment's prefatory clause states: "A well regulated Militia, being necessary to the security of a free State." As the Second Amendment's substantive guarantee confers an individual right to keep and bear arms, the question is whether the language of the Amendment's

preamble modifies the right conferred by the substantive guarantee to limit it to a "collective" right. I am convinced that it does not.

Supporters of a collective rights interpretation read the term "militia" as used in the Second Amendment to mean "essentially a state military entity," and "not some amorphous body of the people as a whole." However, the Second Amendment's language indicates that the "Militia" rests upon the shoulders of the people. And protecting the right of an individual to keep and bear arms certainly serves the Second Amendment's prefatory goal. Allowing citizens to keep arms furthers the effectiveness of a well-regulated militia, which is in turn necessary to the security of a free state. . . .

This interpretation is also consistent with the purposes and structure of the Second Amendment. The Second Amendment serves two purposes: (1) to protect against external threats of invasion; and (2) to guard against internal threats to our republic. . . . As I wrote in [a related case]:

Those who debated and framed the Bill of Rights were educated in practical political concepts and doubtless recognized that an opening gambit for tyrants is to disarm the public. If the Second Amendment is held to protect only a state-regulated militia, then there would be no constitutional bar to a federal government outlawing possession of all arms by hunters and those with legitimate needs for protection. A general confiscation of guns could become the order of the day. I believe that result is foreclosed by the salient purpose of the Second Amendment to guard against tyranny, and that an individual right to keep and bear arms must be recognized.

However, even if I were to assume that the prefatory clause did modify the Second Amendment's substantive guarantee, I would still reach the conclusion that the Second Amendment guarantees an individual right. The First Militia Act of 1792, 1 Stat. 271 (1792), passed only a few years after ratification of the Constitution, provides a contemporaneous window on the accepted meaning of the term "militia" at the time the Constitution was drafted. . . . The Militia Act of 1792 defined the "militia" as: "each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years." Thus, contrary to the "collective rights" notion . . . the militia was precisely not "a state entity, a state fighting force," limited to those who are active members of such a collective organization. It was all the able-bodied white male citizens from 18 to 45, whether they were organized into a state fighting force or not.". . . Furthermore, the Supreme Court has also had opportunity to expound on the historical meaning of the word "militia." In Miller the most recent Supreme Court precedent interpreting the Second Amendment, the Court devoted a substantial portion of its opinion to a discussion of the scope of the "militia." Looking to "the debates in the [constitutional] Convention, the history and legislation of the Colonies and States, and the writings of approved commentators," the Supreme Court concluded that the militia referred to by the Second Amendment was neither an organized fighting force nor a formal state military entity . . . In the words of the Court: "the Militia comprised all males

physically capable of acting in concert for the common defense. A body of citizens enrolled for military discipline."

I do not read the prefatory clause of the Second Amendment to limit the scope of the substantive guarantee of the right to keep and bear arms. Even if a limiting purpose is attributed to the prefatory clause's reference to "militia," the First Militia Act, the current federal statutory definition of "militia" and the Supreme Court's review of the historical meaning and purpose of the militia at the time of the framers are in accord that a "militia" is not restricted to the organized state military. Instead, these authorities support the conclusion that the militia consists of everyday civilians from a broad swath of the population. It is by granting these ordinary civilians the right to keep and bear arms that the Second Amendment aims to further the effectiveness of a "well-regulated militia," which in turn is "necessary to the security of a free State."

II

Historical analysis also supports the conclusion that the framers of the Bill of Rights intended for the Second Amendment to create an individual right to keep and bear arms. The Fifth Circuit devoted a substantial portion of the Emerson opinion to a detailed review of the debate between the Federalists, those in favor of a strong federal government, and Anti-Federalists, those skeptical of a powerful government, over the strength of the federal government established by the Constitution. A summary of the history of the Bill of Rights shows that contemporaneous concern over the strength of the federal government led to the creation of an individual right to keep and bear arms in the Second Amendment.

Although the government contemplated by the Constitution was one of limited, enumerated powers, the Anti-Federalists feared that the federal government would use its power to infringe on the fundamental rights of the people. One concern was the federal government's broad military power under the Constitution, including the power to call forth and organize the militia, and the power to raise and support a standing army . . . . The Anti-Federalists worried that this power could be used to control or destroy the militia, and that a tyrannical federal government could further use this power to leave the states and their citizens defenseless against the federal government's transgressions.

The concerns of the Anti-Federalists did not stop adoption of the Constitution, which was soon ratified by the required nine states. However, these concerns did persuade the first Congress to consider the need to amend the Constitution to include a Bill of Rights. During consideration of what eventually became the Second Amendment, the Senate rejected a proposed amendment that would have granted states the power to arm and train their own militias. In other words, the Senate expressly rejected an amendment proposing language that would support a collective rights view of the Second Amendment. . . .

Contemporaneous legal commentary further shows that persons living in the late eighteenth and nineteenth centuries viewed the Second Amendment as conferring an individual right. . . .

III

The individual rights view of the Second Amendment has also "enjoyed recent widespread academic endorsement." Scholars with such wide-ranging views as Laurence Tribe, Akhil Reed Amar, William Van Alstyne, and Eugene Volokh have come to a consensus that the Second Amendment protects an individual right to keep and bear arms. . . .

. . . . IV

The Second Amendment protects the right "of the people." It protects the people's right not only to "bear arms," which may be read as having a military connotation, but also to "keep arms," which can only be interpreted as having an individual one. By rejecting the individual right to keep arms, Hickman fails to do justice to the language of the Second Amendment. Hickman also disregards the important lesson of history that an armed citizenry can both repel external aggression and check the danger of an internal government degenerating to tyranny.

. . . The Second Amendment was designed to provide national security not only when our country is strong but also if it were to become weakened or otherwise subject to attack. As the people bear the risk of loss of their freedom and the pain of any attack, our Constitution provides that the people have a right to participate in defense of the Nation. The Second Amendment protects that fundamental right.

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Notes and Questions

1. Unlike so many other public health measures considered in this textbook, the activity that gun control legislation seeks to regulate or prohibit is specifically protected by the federal and state constitutions -- at least to some extent. That alone counsels some caution in designing and implementing gun control measures. But the protection of the Second Amendment to the federal Constitution and the protections of the “right to bear arms” that appear in most state constitutions are not easily defined and do not parallel the substantive protections of other protected activities such as speech, religion, or privacy.

Somewhat oddly, there has been virtually no guidance from the U.S. Supreme Court as to the meaning and application of the Second Amendment. The only Supreme Court decision directly addressing the Second Amendment is United States v. Miller, 307 U.S. 174 (1939), which upheld a prosecution under the 1934 federal gun control lawof individuals who were trafficking in “sawed-off shotguns” across state lines. As discussed in Wright, the Court held that since there was no possible linkage between a “well-regulated militia” and the activities of the defendants, the Second Amendment was no bar to the prosecution. Subsequent courts have debated the implications of that holding, but, in fact, the Miller decision does little more than recognize that the Second Amendment can, in some circumstances (other than those before the Court), limit the scope of otherwise constitutional federal government activities.

Subsequent to Miller, most courts, as reflected in the Wright and Silveira decisions, have adopted the narrower view that the Second Amendment is a collective right, essentially imposing limits on the extent to which the federal government can restrict the states in matters relating to their maintenance of the state’s militia. In its narrowest form, this would mean that the Second Amendment does not apply to state government limitations on guns at all.

This narrow view of the reach of the Second Amendment was adopted in Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), which observed that the Supreme Court has never held that the Second Amendment should be viewed as “incorporated” into the substantive requirements of the Fourteenth Amendment; as a consequence Quilici held that the Second Amendment was inapplicable to a local ordinance (or to any other local or state law).

The Bach decision comes to the same conclusion as Quilici, although somewhat indirectly. Most other courts reviewing local or state gun control laws, even those adopting a collective rights approach to the Second Amendment, as demonstrated by Silveira, have at least considered the Second Amendment as potentially applicable to state laws, even while denying that the limits of the Second Amendment invalidate the laws they were evaluating.

As noted in each of the Second Amendment cases excerpted in this chapter, there has been a recent trend towards reexamining the meaning and application of the Second Amendment. In United States v. Emerson,

270 F.3d 203 (5th Cir. 2001, the Fifth Circuit, after a lengthy review of the deliberations leading to the adoption of the Second Amendment, the political and historical record of that time, and the ever-growing literature concerning the “right to bear arms,” held that the Second Amendment does protect an individual’s ability to “bear arms” (although the Emerson court went on to uphold the conviction under state law of the defendant who had possession of a handgun in violation of a court order).

Since Emerson, a number of justices and a few other courts have indicated that they may prefer the individual rights approach of Emerson to the collective rights approach of Wright, Silveira, and most other courts. In 2004, the Bush Administration also took the position (under the urging of Attorney General Ashcroft) that the Second Amendment should be viewed as an individual right. See http://www.usdoj.gov/olc/secondamendment2.htm (last visited April 2006).

2. The Nordyke decisions provide a good illustration of the unsettled status of the law in the last few years and of the issues that are the focus of this highly emotional debate. As noted in Silveira, the Ninth Circuit, sitting en banc, adopted a collective rights approach to the Second Amendment in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996). Silveira, a three-judge panel decision, affirmed that view. In the first Nordyke decision, another panel came to the same conclusion: The Second Amendment confers a collective right and, as a result, individuals cannot claim that the Second Amendment protects them from state or federal gun control laws. The second Nordyke decision was a refusal by the whole Circuit to rehear the first Nordyke decision en banc. The dissent to that decision, excerpted supra, outlines the arguments in support of the individual right perspective (and makes reference to the other decisions that also have taken a “new look” at these issues.)

3. One related issue that has not been addressed at length in any of these cases is the applicable level of judicial scrutiny, if and when the Second Amendment is applied to a state or federal law. As reviewed in earlier chapters, when the government acts in a manner that affects constitutionally protected rights such as privacy, speech, or religion, that fact does not establish an absolute bar to government action, but instead leads the courts to more closely examine the government’s purposes or objectives and the means by which they are sought to be achieved. Even speech, perhaps the most closely protected constitutional right, can be subject to regulation or even prohibited altogether if the government’s purpose is “compelling” and the means for achieving that purpose are “sufficiently tailored.” Assuming the Second Amendment does apply to a state or federal gun control law, that is only the beginning of the inquiry; the courts must still apply some enhanced level of judicial review to that legislation. In this regard, Emerson is a good illustration: Even while recognizing that the “right to bear arms” is implicated by a state law, it still upheld the enforcement of that law (with, unfortunately, little discussion of the applicable standard of judicial review).

What governmental purposes might be sufficiently important to justify a regulation or denial of “the right to bear arms”? How narrow or “tailored” does that legislation have to be? Is a general objection

to some types of guns, e.g., assault rifles, enough of a justification for a categorical ban? If misuse of a gun is a crime, is a prohibition on the possession of guns to avoid that misuse an overbroad effort to prevent the crime? Perhaps most important from a public health perspective, will the courts require advocates of gun control to show empirical support for their claims that one or another gun control law is constitutionally justified?

4. A second relatively-overlooked (to date) issue arises from the fact that some, though not all, states have a “right to bear arms” in their state constitutions. Often these state constitutional provisions are worded differently than the Second Amendment. As such, they may provide a wholly separate basis for opposing a state or local gun control law, one that may be of special relevance in those jurisdictions that view the Second Amendment as inapplicable to the states. More broadly, the state right could be interpreted as an individual one, even by a court or justice inclined to read the Second Amendment as protecting only “collective rights.”

Interestingly, this was a non-issue in the Ninth Circuit decisions in Lockyer and Nordyke since there is not an explicit “right to bear arms” in the California state constitution. In other states with state constitutional rights to bear or keep arms, the issue could be much more important if not wholly determinative.