Independence Institute Amicus Brief in United States v. Emerson

 

Appeal Number 99-10331

In The

UNITED STATES COURT OF APPEALS

For The

FIFTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant

v.

TIMOTHY JOE EMERSON,

Defendant-Appellee

Appeal from Criminal No. 6:98CR103C in the United States District Court

for the Northern District of Texas, San Angelo Division

BRIEF OF AMICUS CURIAE

INDEPENDENCE INSTITUTE

IN SUPPORT OF APPELLEE DR. TIMOTHY JOE EMERSON

DAVID B. KOPEL

14142 Denver West Parkway

Suite 185

Golden, Colorado 80401

303-279-6536

303-279-4176 (fax)

Attorney for Amicus Curiae

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,)

Appeal Nos. 99-10331, 99-10380 & 99-10499)

Plaintiff-Appellant-Cross Appellee)

Appeal from U.S. District Court, Northern)

District of Texas, San Angelo Division)

v. )

TIMOTHY JOE EMERSON,)

Defendant-Appellee-Cross Appellant)

Criminal No. 6:98CR103C)

Honorable Sam R. Cummings)

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record for amicus curiae Independence Institute certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.

Plaintiff-Appellant-Cross Appellee:

United States of America

Represented by:

William Bryan Mateja

U. S. Attorney's Office

1205 Texas Avenue, 7th Floor

Lubbock, Texas 79401

Defendant-Appellee-Cross Appellant:

Timothy Joe Emerson

Represented by:

Timothy Crooks

Federal Public Defender

600 Texas Street, Suite 100

Fort Worth, Texas 76102-4612

Amicus Curiae:

Independence Institute is a Colorado non-profit educational organization. The Independence Institute has not issued stock or debt securities to the public. The Independence Institute is recognized by the Internal Revenue Service as a 26 U.S.C. 501(c)(3) entity.

Represented by

David B. Kopel

14142 Denver West Parkway

Suite 185

Golden, Colorado 80401

Attorney for Amicus Curiae

Respectfully submitted,

_______________________________

David B. Kopel

Attorney for Amicus Curiae Independence Institute

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS................................................... ii

TABLE OF CONTENTS.................................................................................. iv

TABLE OF AUTHORITIES.............................................................................. v

STATEMENT OF INTEREST OF AMICUS CURIAE.. ..................................... x

ARGUMENT.....................................................................................................1

I. THE TEXTS OF STATE CONSTITUTIONAL ARMS RIGHTS SHOW THAT THE SECOND AMENDMENT PROTECTS A RIGHT OF ORDINARY CITIZENS........ 2

II. STATE CASE LAW SHOWS THAT JUDICIAL ENFORCEMENT OF THE RIGHT IS COMMON AND NOT HARMFUL................................................. 27

CONCLUSION............................................................................................... 28

CERTIFICATE OF SERVICE......................................................................... 29

CERTIFICATE OF COMPLIANCE................................................................. 30

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES

Benton v. Maryland, 395 U.S. 784 (1969)........................................................... 1

Harmelin v. Michigan, 501 U.S. 957 (1991)..........................................................1

Muscarello v. United States, 524 U.S. 125 (1998).................................................3

Presser v. Illinois, 116 U.S. 252 (1886).........................................................25-26

United States v. Miller, 307 U.S. 174 (1939)....................................................... 5

STATE COURT CASES

Andrews v. State, 50 Tenn. 165, 8 Am. Rep. 8 (1871)..............................22-25, 28

Arnold v. City of Cleveland, 616 N.E.2d 163 (Ohio 1993).................................. 21

Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840)............................................. 23

Barnett v. State, 72 Or. App. 585, 695 P.2d 991 (1985)......................................27

Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 13 Am. Dec. 251 (1822)..................29

City of Chattanooga, 157 Tenn. 518, 11 S.W.2d 678 (1928)............................... 28

City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972)......................... 27

City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737 (Ct. App. 1971). ........ 27

City of Salinas v. Blaksley, 72 Kan. 230, 83 P. 619 (1905)..................................11

Commonwealth v. Blanding, 20 Mass. (3 Pick.) 304 (1825).................................14

Commonwealth v. Davis, 369 Mass. 886, 343 N.E.2d 847 (1976)........................14

Commonwealth v. Murphy, 166 Mass. 171, 44 N.E. 138 (1896)..........................14

Fife v. State, 31 Ark. 455, 25 Am. Rep. 556 (1876) ............................................ 5

Glasscock v. City of Chattanooga, 157 Tenn. 518, 11 S.W.2d 678 (1928). . ....... 27

In re Brickey, 8 Ida. 597, 70 P. 609 (1902)........................................................28

In re Reilly, 31 Ohio Dec. 364 (C.P. 1919)....................................................27-28

Jennings v. State, 5 Tex. App. 298 (1878).......................................................... 28

Junction City v. Mevis, 226 Kan. 526, 601 P.2d 1145 (1979).........................11, 27

Nunn v. State, 1 Ga. (1 Kel.) 243 (1846)........................................................8, 28

People v. Nakamura, 99 Colo. 262, 62 P.2d 246 (1936)..................................... 27

People v. Zerillo, 219 Mich. 635, 189 N.W. 927 (1922)...................................... 27

Schubert v. DeBard, 73 Ind. Dec. 510, 398 N.E.2d 1339 (Ind. Ct. App. 1980).10-11

Smith v. Ishenhour, 43 Tenn. (3 Cold.) 214 (1866).............................................28

State v. Blocker, 291 Or. 255, 630 P.2d 824 (1981)............................................27

State v. Delgado, 298 Or. 395, 692 P.2d 610 (1984)...........................................27

State v. Freil, 508 A.2d 123 (Me. 1986)............................................................ 13

State v. Huntley, 25 N.C. 418 (1843).................................................................19

State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921)......................................19, 27

State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980)............................................... 2

State v. Mendoza, 82 Haw. 143, 920 P.2d 357 (1996)..........................................9

State v. Newsom, 27 N.C. (5 Ired.) 250 (1844).................................................. 19

State v. Rosenthal, 75 Vt. 295, 55 A. 610 (1903).......................................... 25, 28

State ex rel. City of Princeton v. Buckner, 180 W.Va. 457, 377 S.E.2d 139 (1988) 27

Wilson v. State, 33 Ark. 557, 34 Am. Rep. 52 (1878)..................................... 5, 28

Wright v. Commonwealth, 77 Pa. St. 470 (1875)............................................... 22

UNITED STATES CONSTITUTION

Art. I, 8....................................................................................................... 20

Art. I, 9...................................................................................................... 20

STATE CONSTITUTIONS

Alabama Constitution, Art. I, 26..................................................................... 2

Alaska Constitution, Art. I, 19........................................................................ 3

Arkansas Constitution, Art. II, 5..................................................................... 4

Colorado Constitution, Art. II, 13.............................................................. 5, 12

Connecticut Constitution, Art. I, 15................................................................ 6

Delaware Constitution, Art. I, 20.................................................................... 6

Florida Constitution, Art. I, 8.....................................................................6, 13

Georgia Constitution, Art. I, 1, & VIII....................................................... 7, 13

Hawaii Constitution, Art. I, 17..........................................................................9

Idaho Constitution, Art. I, 11.....................................................................9, 12

Illinois Constitution, Art. I, 22................................................................... 9-10

Indiana Constitution, Art. I, 32.......................................................................10

Kansas Bill of Rights, 4..................................................................................11

Kentucky Bill of Rights, 1.......................................................................12, 19

Louisiana Constitution, Art. I, 11.................................................................. 12

Maine Constitution, Art. I, 16........................................................................13

Massachusetts Constitution, Part 1, Art. 17................................................... 13-14

Michigan Constitution, Art. I, 6.................................................................... 14

Mississippi Constitution, Art. III, 12........................................................ 13, 15

Missouri Constitution, Art. I, 23...............................................................13, 15

Montana Constitution, Art. II, 12........................................................13, 16, 17

Nebraska Constitution, Art. I, 1..........................................................16, 17, 19

Nevada Constitution, Art. I, 11(1) ........................................................... 16-17

New Hampshire Constitution, Pt. 1, art.2‑a.......................................................17

New Mexico Constitution, Art. II, 6........................................................ 13, 17

North Carolina Constitution, Art. 1, 30..................................... 11, 13,17-18, 20

North Dakota Constitution, Art. I 1. . . . . . . . . . . . . . . . . . . . . . . . . . . .........19

Ohio Constitution, Art. I, 4..................................................................... 11, 20

Oklahoma Constitution, Art. II, 26.................................................................21

Oregon Constitution, Art. I, 27..................................................................... 21

Pennsylvania Constitution, Art. 1, 21.............................................................21

Tennessee Constitution, Art. I, 26 ..................................................... 13, 22-23

Washington Constitution, Art. I, 24................................................................25

West Virginia Constitution, Art. III, 22.......................................................... 26

Wisconsin Constitution, Art. I, 25................................................................. 26

Wyoming Constitution, Art. I, 24...................................................................26

BOOKS

Dictionary of American Biography (Dumas Malone ed. 1933)...............................8

Jennifer Friesen, State Constitutional Law(1993).............................................. 26

The Story of Georgia (Am. Historical Society 1938)............................................. 8

ARTICLES

David B. Kopel, "The Second Amendment in the Nineteenth Century," 1998 B.Y.U. L. Rev.1359................................................................................................8, 11

Eugene Volokh, State Constitutional Right to Keep and Bear Arms Provisions, http://www.law.ucla.edu/faculty/volokh/beararms/statecon.htm ............................. 2

Judge Lumpkin In Memoriam, 36 Ga. 19 (1867)................................................. 8

Robert E. Shalhope, "The Armed Citizen in the Early Republic," 49 L. & Contemp. Probs.125 (1986)............................................................................................ 20

STATEMENT OF INTEREST OF AMICUS CURIAE

The Independence Institute is a public policy research organization dedicated to the principles of the Declaration of Independence. Recognized by The Nation magazine as one of the four most effective state level think tanks, the Institute educates the public and the legal community, and through participating in litigation, seeks to defend Constitutional rights. Scholars at the Independence Institute have authored half a dozen books and over two dozen articles in law reviews and other scholarly journals on the Second Amendment and firearms policy. The Institute's Research Director, David B. Kopel, is the lead author of the first law school textbook to focus on the Second Amendment: "Gun Control and Gun Rights" (New York University Press, forthcoming, 2001).

All parties have consented to this brief.

ARGUMENT

State constitutions serve as an aid to interpreting the Bill of Rights. Harmelin v. Michigan, 501 U.S. 957, 966, 977-78, 983 (1991); Benton v. Maryland, 395 U.S. 784, 795-96 (1969). In the instant case, they prove the contemporary importance of the right, prove that the right belongs to individuals, and prove that judicial enforcement of the right does not harm society.

Since 1963, the people of Alaska, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Louisiana, Maine, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, Utah, Virginia, West Virginia, and Wisconsin have chosen, either through their legislature or through a direct vote, to add a right to arms to their state constitution, to re-adopt the right to arms, or to strengthen an existing right. In every state where the people have had the opportunity to vote directly, they have voted for the right to arms by overwhelming margins. For example, in 1998 Wisconsin adopted a guarantee by a vote of 1,205,873 to 425,052; in 1986, the West Virginia adopted its guarantee by a vote of 342,963 to 67,168. Thus, the people continue to adopt the right with an awareness of modern conditions, such as urbanization, modern firearms, and crime.

I. THE TEXTS OF STATE CONSTITUTIONAL ARMS RIGHTS SHOW THAT THE SECOND AMENDMENT PROTECTS A RIGHT OF ORDINARY CITIZENS

The texts of state guarantees to arms prove that the Second Amendment guarantees an individual right belonging to ordinary American people, and disprove the claim that the Second Amendment does not belong to all adult citizens, or that the Amendment is concerned exclusively with the military balance of power between the federal government and the states.

The 44 state constitutional guarantees to arms and the history of their adoption will be examined. In order to comply with word-length limitations, this brief does not quote in full every version of a every state constitutional provision. Full quotations are available at Eugene Volokh, State Constitutional Right to Keep and Bear Arms Provisions, http://www.law.ucla.edu/faculty/volokh/beararms/statecon.htm.

Alabama: "That every citizen has a right to bear arms in defense of himself and the state." Alabama Constitution, Art. I, 26 (1819; "defence" changed to "defense" in 1901).

Alabama's guarantee refers to community protection (such as might be provided in militia service) with the phrase "bear arms in defense of "the state." It also refers to personal protection: "bear arms in defense of himself." The Alabama language shows that, contrary to the claims of some of appellant's amici, the phrase "bear arms" does not mean only "bearing arms in the militia." In fact, a "citizen" can "bear arms in defense of himself."

The 1819 usage of "bear arms' is consistent with modern usage. Recently, Justice Ginsburg analyzed the statutory phrase "carries a firearm." She wrote:

Surely a most familiar meaning is, as the Constitution's Second Amendment ("keep and bear Arms") and Black's Law Dictionary, at 214, indicate, "wear, bear, or carry...upon the person or in the clothing or in a pocket, for the purpose...of being armed and ready for offensive or defense action in case of a conflict with another person."

Muscarello v. United States, 524 U.S. 125, 150 (1998)(Ginsburg, J., dissenting on other grounds). Thus, the phrase "bear arms" in the Second amendment encompasses more than just bearing arms in the militia.

Alaska: "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. The individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State." Alaska Constitution, Art. I, 19 (first sentence adopted 1959, second sentence 1994).

Some dicta from lower federal courts asserts that the Second Amendment right belongs only to state militias, to protect them from disarmament by the federal government. Alaska's guarantee shows the error of this claim. If the claim were true, then it would be preposterous for the people of Alaska to place in their constitution language which is identical to the Second Amendment; because of the Supremacy Clause in the United States Constitution, nothing in the Alaska Constitution could prevent the federal government from disarming the Alaska state militia. The obvious reason that the people of Alaska placed the exact language of the Second Amendment in their state Constitution was to keep the Alaska state government from disarming the people of Alaska. The people of Alaska chose these precise words because these precise words are used in the United States Constitution to prevent the United States government from disarming the people of the United States.

Arizona: Discussed with Washington, infra.

Arkansas: "The citizens of this State shall have the right to keep and bear arms for their common defense." Art. II, 5 (1868, modifying 1836 version).

Arkansas's guarantee is narrower than the Second Amendment, because it guarantees the right only "for their common defense." By the theory of appellant's amici, the arms right in Arkansas would include only people actively engaged in the "common defense" such as militiamen on active duty. However, Arkansas courts have interpreted this right to guarantee all law-abiding Arkansans the right to own firearms. Arkansas courts apply the "common defense" language so that the right only includes the type of arms which might be useful for militia service. Fife v. State, 31 Ark. 455, 460-61, 25 Am. Rep. 556 (1876) (large military-sized pistols are within scope of arms right, but small concealable handguns are not). See also Wilson v. State, 33 Ark. 557, 34 Am. Rep. 52 (1878). Thus, the Arkansas courts effectuate every word of the state constitution: the right belongs to every "citizen" but the right includes only ownership of the type of firearms useable for the "common defense." The Fire case in Arkansas is one of many state cases whose precedent was followed in United States v. Miller, 307 U.S. 174, 183 n.3 (1939), which allowed for a Second Amendment claim on behalf of two individual citizens (Jack Miller and Frank Layton, who were not in any militia), while holding that the Second Amendment does not extend to firearms which are unsuitable for militia use.

Colorado: "The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons." Art. II, 13 (1876).

Again, the phrase "keep and bear arms" is used for more than militia use. The Colorado Constitution shows that a person may "keep and bear arms in defense of his home, person, or property."

Connecticut: "Every citizen has a right to bear arms in defense of himself and the state." Art. I, 15 (1818; readopted 1965).

Connecticut too uses "bear arms" to encompass personal defense.

Delaware: "A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use." Art. I, 20 (1987). As Delaware shows, "bear arms" can include "hunting and recreational use" as well as defense of "self, family, home and State."

Florida: "(a) The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.' Art. I, 8. (Sections (b)‑(d), adopted in 1990, allow local governments to impose a waiting period on some handgun purchases).

1838: "That the free white men of this State shall have a right to keep and to bear arms for their common defence." Art. I, 21.

1868: "The people shall have the right to bear arms in defence of themselves and of the lawful authority of the State." Art. I, 22.

1885: "The right of the people to bear arms in defence of themselves and the lawful authority of the State, shall not be infringed, but the Legislature may prescribe the manner in which they may be borne." Art. I, 20.

1968: "The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law." Art. I, 8.

The people of Florida have repeatedly used "right of the people to keep and bear arms" to protect the right of every individual citizen of Florida to possess a firearm. If, as Appellant and its amici claim, the Second Amendment does nothing more than protect state militias from federal interference, it is impossible to explain why language based on the Second Amendment appears again and again in state constitutional language throughout the nineteenth and twentieth centuries.

Georgia: "The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne." Art. I, 1, & VIII (1877; readopted 1982; 1865 and 1868 versions omitted).

Again, language nearly identical to the Second Amendment is used to guarantee a right of individuals. Before Georgia had its own right to arms guarantee, the Georgia Supreme Court used the Second Amendment to declare a state handgun ban illegal. The Georgia Court explained that the Second Amendment protects:

The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well‑regulated militia, so vitally necessary to the security of free State.

Nunn v. State, 1 Ga. (1 Kel.) 243, 249-51 (1846).[1]

The Nunn decision was consistent with every nineteenth century Supreme Court case, every state court case (except for a lone concurring opinion), and every legal treatise which discussed the Second Amendment. Appellant's theory of the Second Amendment is a twentieth-century invention; for the first century of the Second Amendment, it was undisputed that the Second Amendment guaranteed an individual right of every citizen to own and carry firearms. David B. Kopel, "The Second Amendment in the Nineteenth Century," 1998 B.Y.U. L. Rev. 1359.

Hawaii: "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." Art. I, 17 (1959).

Language identical to the Second Amendment has been judicially determined to guarantee an individual right of all citizens, not just of citizens who are in the militia. State v. Mendoza, 82 Haw. 143, 149 n. 9, 920 P.2d 357, 363 n. 9 (1996).

Idaho: "The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony." Art. I, 11 (1978; 1889 version omitted).

Once more, language which tracks the Second Amendment is used to protect an individual right.

Illinois: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." Art. I, 22 (1970).

This is another modern usage of language from the Second Amendment to protect the rights of individual citizens, and another usage of "bear arms" outside an exclusively military context.

Indiana: "The people shall have a right to bear arms, for the defense of themselves and the State." Art. I, 32 (1851).

1816: "That the people have a right to bear arms for the defense of themselves and the State, and that the military shall be kept in strict subordination to the civil power." Art. I, 20.

The 1816 Indiana Constitution underscores the point made at great length by some of appellant's amici: one major rationale for the right to arms in the early republic was concern about the dangers of standing armies. That is why the people of Indiana put the right to arms provision in the same section as a restriction on standing armies. But appellant's amici err by claiming that the right to arms only includes people who are in a militia which might fight a standing army. Even with the anti-standing army language, Indiana's Constitution, which tracks the Second Amendment, was always construed to protect a right of all citizens of Indiana (not just militiamen) to own and carry firearms--subject of course of reasonable restrictions. E.g., Schubert v. DeBard, 73 Ind. Dec. 510, 398 N.E.2d 1339 (Ind. Ct. App. 1980). The same is true of the constitutions of North Carolina, Ohio, South Carolina, and Vermont, all of which use a single constitutional section to denounce standing armies and to protect a right of every citizen to possess arms.

Kansas: "The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power." Bill of Rights, 4 (1859).

This section was once interpreted as appellants' amici would prefer: as no right at all, but instead as a mere platitude about the state's authority over its militia. But this interpretation in the 1905 Salinas v. Blaksley case represented a sharp break from all prior precedent. Kopel, "The Second Amendment in the Nineteenth Century," at 1510-12; City of Salinas v. Blaksley, 72 Kan. 230, 83 P. 619 (1905). Kansas courts have abandoned the erroneous Salinas result, and now allow individual Kansans who are not in the Kansas National Guard to raise claims under the Kansas Bill of Rights guarantee. Junction City v. Mevis, 226 Kan. 526, 601 P.2d 1145 (1979).

Kentucky: "All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

First: The right of enjoying and defending their lives and liberties. . . .

Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." Bill of Rights 1 (1891).

1792: "That the right of the citizens to bear arms in defence of themselves and the State, shall not be questioned." Art. XII, 23. (1799 and 1850 provisions omitted.)

The 1792 Kentucky constitution was nearly contemporaneous with the Second Amendment, which was ratified in 1791. Kentucky shows that--the year after the Second Amendment became the law of the land--constitutional drafters used the phrase "bear arms" to include bearing arms for personal and collective defense--"in defence of themselves and the state." (emphasis added).

Louisiana: "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person." Art. I, 11 (1974; 1879 provision omitted).

Louisiana is one of many states to use language almost identical to the Second Amendment, while including an explicit provision to allow regulation of the carrying of concealed weapons. See, e.g., constitutions of Colorado, Idaho, Kentucky, Mississippi, Missouri, Montana, New Mexico, "New Mexico" and North Carolina; see also Florida, Georgia, Tennessee and Texas Constitutions (power to regulate all types of arms carrying). These arms-carrying restrictions show that Second Amendment language was understood to include ordinary citizens walking around with firearms for personal protection or hunting. That is why the legislature was given authority to control the carrying of weapons--to control ordinary people carrying guns.

Maine: "Every citizen has a right to keep and bear arms and this right shall never be questioned." Art. I, 16 (adopted 1987 after a collective‑rights interpretation of the original provision).

1819: "Every citizen has a right to keep and bear arms for the common defence; and this right shall never be questioned." Art. I, 16.

State v. Freil, 508 A.2d 123 (Me. 1986), read the 1819 language the way that appellant urges this court to read the Second Amendment--as guaranteeing no real right at all. The people of Maine quickly demonstrated that this reading was grossly out of step with contemporary norms--by overwhelmingly adopting language to correct the court's error.

Massachusetts: "The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it." Part 1, Art. 17 (1780).

Commonwealth v. Davis, 369 Mass. 886, 343 N.E.2d 847 (1976), breaking with Massachusetts precedent, held that this provision is a mere affirmation of the state government's militia powers. But see Commonwealth v. Blanding, 20 Mass. (3 Pick.) 304, 313 (1825)(right to keep arms is an individual right), and Commonwealth v. Murphy, 166 Mass. 171, 44 N.E. 138 (1896) (ordinary individual may invoke arms right, but right does not include mass armed parades in public). Massachusetts is the only state where the state constitutional right to arms has been held not to belong to possession of firearms by individuals who are not in a militia.

Michigan: "Every person has a right to keep and bear arms for the defense of himself and the state." Art. I, 6 (1835; readopted 1963).

If "to keep and bear arms" is a "term of art" used to mean militia service only, as amici for appellant argue, that "art" must have been entirely unknown to the people who drafted the state constitutions of the early American Republic for the early drafters used "keep and bear arms" again and again to protect the right of individuals to possess and carry firearms for personal defense.

Mississippi: "The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons." Mississippi Constitution, Art. III, 12 (1890; 1817, 1832, and 1868 provisions omitted).

The concealed weapon restriction underscores that "the right to keep and bear arms" includes the right to carry firearms (but not concealed firearms) for personal protection.

Missouri: "That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons." Art. I, 23 (1945; 1865 and 1875 provisions omitted).

1820: "That the people have the right peaceably to assemble for their common good, and to apply to those vested with the powers of government for redress of grievances by petition or remonstrance; and that their right to bear arms in defence of themselves and of the State cannot be questioned." Art. XIII, 3.

The 1820 Missouri Constitution guarantees the right of "the people" to assemble and to bear arms. The usage shows that the expectation that a right would often be exercised collectively is consistent with the right inhering in individuals.

Montana: "The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons." Art. II, 12 (1889; readopted 1972).

Nebraska: "All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof. To secure these rights, and the protection of property, governments are instituted among people, deriving their just powers from the consent of the governed." Art. I, 1 (arms right added 1988).

Nevada: "Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes." Art. I, 11(1) (1982).

New Hampshire: "All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state." Pt. 1, art. 2‑a (1982).

New Mexico: "No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms." Art. II, 6 (first sentence adopted in 1971; second sentence adopted 1986; 1912 provision omitted).

The Constitutional right to arms provisions of New Mexico, New Hampshire, Nebraska, Nevada, and Montana were adopted as early as 1889 and as late as 1988, but each constitution uses 'right to keep and bear arms' to refer unmistakably to an individual right to arms. The usage reflects the shared understanding of the vast majority of the American people that the same phrase in the Second Amendment likewise guarantees a right to every responsible citizen.

North Carolina: "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; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice." Art. 1, 30 (1971).

1776: "That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power." Bill of Rights, XVII (1868 and 1875 provisions omitted).

The language of the 1776 North Carolina Constitution is particularly important. The 1776 use of the phrase "the people have a right to bear arms" precedes James Madison's derivative use of a very similar phrase in 1789 when he wrote the Second Amendment. The 1776 North Carolina Constitution mentions "for the defence of the State" but no other purpose. And the 1776 "right to bear arms" language is included in the same sentence as denunciations of and restrictions on standing armies. Thus, if appellants' amici's theory of the Second Amendment (that it protects only active militiamen) were true, then a fortiori, the 1776 North Carolina Constitution would only protect, at most, people in active militia service. But in fact, the North Carolina Constitution has always been, without dissent, construed to guarantee a right of ordinary citizens to carry weapons for personal protection. State v. Huntley, 25 N.C. 418, 422 (1843) ("For any lawful purpose--either of business or amusement--the citizen is at perfect liberty to carry his gun."); State v. Newsom, 27 N.C. (5 Ired.) 250, 251 (1844)(upholding gun licensing law for free people of color only because they, unlike citizens, were not parties to the social compact). See also, e.g., State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921)(upholding constitutional right to possess ordinary rifles, shotguns, and handguns).

North Dakota: "All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness; and to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed." Art. I, 1 (right to keep and bear arms adopted 1984).

Like Nebraska and Kentucky, North Dakota interpolates the right to arms in a larger section which guarantees numerous individual rights. Similarly, James Madison's original proposal for the right to keep and bear arms put that clause in Article I, section 9, of the U.S. Constitution--the section which guarantees various individual rights, such as habeas corpus. If Madison viewed the Second Amendment a restriction on federal powers over the militia, then he would have put the Second Amendment in Article I, section 8, the portion of the Constitution which grants militia powers to the federal government. Robert E. Shalhope, "The Armed Citizen in the Early Republic," 49 L. & Contemp. Probs.125, 135 (1986).

Ohio: "The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power." Art. I, 4 (1851).

1802: "That the people have a right to bear arms for the defence of themselves and the State; and as standing armies, in time of peace, are dangerous to liberty, they shall not be kept up, and that the military shall be kept under strict subordination to the civil power." Art. VIII, 20.

Like North Carolina, Ohio places the arms right in the same sentence as anti-standing army language. Yet the Ohio Constitution has always been construed to protect an individual right of Ohio citizens to own and carry guns for lawful purposes. E.g., Arnold v. City of Cleveland, 616 N.E.2d 163 (Ohio 1993). For other states putting an ordinary individual's right to arms in the same constitutional section as anti-standing army language, see the constitutions of Pennsylvania, South Carolina, Texas, Vermont, and Virginia.

Oklahoma: "The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons." Art. II, 26 (1907).

Oregon: "The people shall have the right to bear arms for the defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]" Art. I, 27 (1857).

Pennsylvania: "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned." Pennsylvania Constitution, Art. 1, 21 (1790).

1776: "That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power." Declaration of Rights, cl. XIII.

The 1776 Pennsylvania "right to bear arms" provision helped set the stage for the Second Amendment. The 1790 "right of the citizens to bear arms" guarantee was enacted after Congress had sent the Second Amendment to the states for ratification, and while the state ratification process was on-going. Thus, the 1790 Pennsylvania provision provides the best possible evidence about the meaning of constitutional phrases at the very time the people were approving the Second Amendment. Both in 1790 and 1776, Pennsylvania used the language "bear arms in the [or "for"] defence of themselves and the state." This language has always been interpreted by Pennsylvania courts to protect the right of all Pennsylvanians, not just militiamen, to possess firearms. E.g., Wright v. Commonwealth, 77 Pa. St. 470 (1875). The language shows that "bear arms" is not a term of art which means militia usage and nothing else.

To comply with word limitations, this brief omits quotation of the Rhode Island, South Carolina, and South Dakota constitutions--all of which contain language similar to the Second Amendment. These provisions further refute the theory that Second Amendment is concerned only with state/federal relations, and not with personal rights.

Tennessee: "That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime." Art. I, 26 (1870).

1796: "That the freemen of this State have a right to keep and bear arms for their common defence." Art. XI, 26. (1834 provision omitted.)

Tennessee's Constitution mentions "common defence" and does not specifically state any other purposes for the arms right. The Tennessee Supreme Court interpreted the Tennessee guarantee, and suggested that the Second Amendment was intended "[i]n the same view." Aymette v. State, 21 Tenn. (2 Hump.) 154, 157 (1840). The Court held that bearing arms was only for militia purposes, and that keeping arms was only for collective resistance to tyranny, not for "private" defense. But even in Aymette, the right to own firearms was not restricted solely to people who might be militiamen; rather the right belonged to all citizens: "The citizens have the unqualified right to keep the weapon .Y But the right to bear arms is not of that unqualified character." 21 Tenn. at 160. Thus, even with the most restrictive reading possible of the scope of "bear arms" and the purpose of the right to arms, all (law-abiding) citizens retain a right to keep arms.

In Andrews v. State, 50 Tenn. 165, 8 Am.Rep. 8 (1871), the court expanded upon Aymette. After stating that the Tennessee provision and the Second Amendment were functionally identical, 50 Tenn. at 177, 8 Am.Rep. at 12-13, the court explained why recognition of the militia purpose behind the Tennessee Constitution (and the Second Amendment) does not deprive ordinary citizens of the right to use ordinary firearms for diverse purposes:

The right to keep arms, necessarily involves the right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair. And clearly for this purpose, a man would have the right to carry them to and from his home, and no one could claim that the Legislature had the right to punish him for it, without violating this clause of the Constitution.

But farther than this, it must be held, that the right to keep arms, involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace . . . .

What, then, is he protected in the right to keep and thus use? Not every thing that may be useful for offense or defense; but what may properly be included or understood under the title of arms, taken in connection with the fact that the citizen is to keep them, as a citizen. . . . [W]e would hold, that the rifle of all descriptions, the shot gun, the musket, and repeater, are such arms . . . .

50 Tenn. at 178-79, 8 Am.Rep. at 13-14.

The Tennessee Attorney General (like appellant with its misreading of Miller) had argued that the arms right was a "political right" which, unlike a "civil right", could be restricted without limit. The court explained the error of an argument that:

fails to distinguish between the nature of the right to keep, and its necessary incidents, and the right to bear arms for the common defense. Bearing arms for the common defense may well be held to be a political right, or for protection and maintenance of such rights, intended to be guaranteed; but the right to keep them, with all that is implied fairly as an incident to this right, is a private individual right, guaranteed to the citizen, not the soldier.

50 Tenn. at 182 (emphasis in original).

To comply with word limitations, the Texas, Utah, Vermont, and Virginia constitutions are omitted. Vermont's juxtaposes a right to bear arms with a denunciation of standing armies. That Vermont's right is individual shows that concern about standing armies does not negate the guarantee of a strong personal right to arms. State v. Rosenthal, 75 Vt. 295, 55 A. 610 (1903).

Washington: "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men." Art. I, 24 (1889).

The Washington Constitution (like Arizona's) makes explicit a principle which has been considered implicit in the Second Amendment: protection of an individual right "to bear arms" does not forbid the government from controlling large assemblies of armed men. Just a few years before the Washington Constitution was adopted, the Supreme Court upheld a state ban on armed parades in public, even as the Court plainly treated the Second Amendment as an individual right protected against federal infringement. Presser v. Illinois, 116 U.S. 252 (1886).

West Virginia: "A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use." Art. III, 22 (1986).

Wisconsin: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." Art. I, 25 (1998).

West Virginia and Wisconsin are two of the most recent state adoptions of an arms right. Today, as in 1789, "the people" is used to signify a right which may be exercised by ordinary citizens, regardless of whether they are part of some government organization.

Wyoming: "The right of citizens to bear arms in defense of themselves and of the state shall not be denied." Art. I, 24 (1889).

Once more, "bear arms" is something that citizens can do "in defence of themselves," and not only in defense of "the state."

Protected by forty-four state constitutions, the right to arms is no less fundamental than the right to free exercise of religion and freedom from religious discrimination, which is protected by 34 state constitutions. Jennifer Friesen, State Constitutional Law App. 4A-12 (1993).

II. STATE CASE LAW SHOWS THAT JUDICIAL ENFORCEMENT OF THE RIGHT IS COMMON AND NOT HARMFUL

There is nothing unusual about the instant case. There are at least 21 additional reported cases where a law has been found to violate the right to arms. State ex rel. City of Princeton v. Buckner, 180 W.Va. 457, 377 S.E.2d 139 (1988)(gun carrying law); Barnett v. State, 72 Or. App. 585, 695 P.2d 991 (1985)(prohibition on black jacks); State v. Delgado, 298 Or. 395, 692 P.2d 610 (1984)(prohibition on switchblade knives; State v. Blocker, 291 Or. 255, 630 P.2d 824 (1981)(prohibition on carrying a club); State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980)(prohibition on possessing a club); Junction City v. Mevis, supra(Kan. 1979)(gun carrying ordinance was too broad); City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972)(restrictions on firearms sale, possession, and carrying were too broad); City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737 (Ct. App. 1971)(gun carrying ordinance); People v. Nakamura, 99 Colo. 262, 62 P.2d 246 (1936)(prohibition of firearm possession by lawful aliens); Glasscock v. City of Chattanooga, 157 Tenn. 518, 11 S.W.2d 678 (1928)(gun carrying); People v. Zerillo, 219 Mich. 635, 189 N.W. 927 (1922)(prohibiting possession of a firearm); State v. Kerner, supra, (N.C. 1921)(pistol carrying license and bond requirement); In re Reilly, 31 Ohio Dec. 364 (C.P. 1919)(ordinance forbidding hiring armed guard to protect property); State v. Rosenthal, supra(Vt. 1903)(pistol carrying); In re Brickey, 8 Ida. 597, 70 P. 609 (1902)(gun carrying); Jennings v. State, 5 Tex. App. 298 (1878)(statute requiring forfeiture of pistol after misdemeanor conviction); Wilson v. State, supra(Ark. 1878)(pistol carrying); Andrews v. State, supra(Tenn. 1871)(pistol carrying); Smith v. Ishenhour, 43 Tenn. (3 Cold.) 214 (1866)(gun confiscation); Nunn v. State, supra(Ga. 1846)(handgun ban); Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 13 Am.Dec. 251 (1822)(gun carrying).

Courts in the above states have also upheld other, reasonable gun control laws. As the state experience shows, judicial protection of the right to arms does not lead to anarchy, or to any of the other ridiculous scenarios posited by appellant's amici.

CONCLUSION

The judgment of the District Court should be affirmed.

Respectfully submitted,

David B. Kopel

Counsel for Amicus Curiae


CERTIFICATE OF SERVICE "CERTIFICATE OF SERVICE

I hereby certify that on December 17, 1999, two (2) paper copies and one computer readable 3-inch disk of the foregoing brief were served by Federal Express, and addressed to Paul E. Coggins, United States Attorney, 1205 Texas Avenue, 7th Floor, Lubbock, Texas 79401, and to Timothy Crooks, Assistant Federal Public Defender & Appellate Chief, 600 Texas Street, Suite 100, Fort Worth, Texas 76102-4612.

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

David B. Kopel


[1] Chief Justice Joseph Henry Lumpkin, author of the opinion, is recognized as one of the leading State Supreme Court judges of the nineteenth century. Judge Lumpkin In Memoriam, 36 Ga. 19 (1867); 6 Dictionary of American Biography 502 (Dumas Malone ed. 1933); The Story of Georgia 243 (Am. Historical Society 1938).

 

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