Amicus Curiae Brief — Lisa M. Folajtar, Petitioner v. Merrick B. Garland, Attorney General, et al.

No. 20-812

In the Supreme Court of the United States

__________

LISA M. FOLAJTAR,

Petitioner,

v.

MERRICK B. GARLAND, ATTORNEY GENERAL et al.,

Respondents.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

__________

Brief of Neal Goldfarb

as Amicus Curiae

in Support of Respondents

__________

Neal Goldfarb

1301 Fairmont St., N.W.

Washington, D.C. 20009

(202) 262-7886

goldfarbneal@gmail.com

Counsel for Amicus Curiae

Contents

Table of Authorities ..................................................... iii

Interest of Amicus .......................................................... 1

Introduction and Summary of Argument .................... 1

Argument ........................................................................ 4

I. Heller’s analysis of well regulated militia was

flawed. ....................................................................... 4

A. It was inappropriate to interpret militia and

well regulated independently of one another,

rather than interpreting the phrase as an

integrated linguistic unit.................................... 4

B. Heller’s separate interpretations of militia

and well regulated don’t cohere when they

are combined into an interpretation of the

full phrase. ........................................................... 7

II. Evidence of 18th-century usage indicates that

well regulated militia was most likely understood to denote a militia organized and regulated by the government of the colony or state. ........ 9

A. Colonial and state militia statutes................... 10

1. “regulating the militia,” “regulation of

the militia,” “regulate the militia,” etc. .... 11

2. “well regulated militia” .............................. 13

B. George Washington (1777) ............................... 15

C. Report to the Continental Congress (1783) .... 16

D. Lafayette (1786) ................................................ 17

E. The Constitutional Convention (1787) ........... 18

1. George Mason .............................................. 18

2. Oliver Ellsworth .......................................... 19

ii

3. James Madison ............................................ 19

F. The Federalist No. 29 (Hamilton 1788) ........... 20

G. George Washington (1794) ............................... 21

H. John Sevier, governor of Tennessee (1797) .... 22

I. Jabez Parkhurst (1798) .................................... 22

J. Summary ........................................................... 24

Conclusion .................................................................... 25

Table of Authorities

Cases

Artis v. District of Columbia, 583 U.S. __, 138 S. Ct.

594 (2018) ................................................................. 6

Deal v. United States, 508 U.S. 129 (1993) ................... 5

District of Columbia v. Heller, 554 U.S. 570

(2008)............................................................... passim

King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991) .. 5

NLRB v. Federbush Co., 121 F.2d 954 (2d Cir. 1941)... 5

Constitutional Provisions

U.S. Constitution:

Art. 1.......................................................................... 8

Second Amendment........................................ passim

Statutes

Connecticut:

Act (undated), Conn. Acts & Laws 144 (1784) ..... 11

Delaware:

Act of June 4, 1785, Del. Laws, June 1785, reprinted in II Part 3 United States Selective Service System, Military Obligation: The American

Tradition 26 (Arthur Vollmer, compiler 1947) ..... 14

Massachusetts:

Act of Jan. 22, 1776, 5 Mass. Acts & Resolves

445 (1886) ............................................................... 12

iv

New Hampshire:

Act of June 24, 1786, 5 Laws of N.H. 12 (Henry

Harrison Metcalf, ed. 1916) ................................... 12

New Jersey:

Act of Jan. 8, 1781, N.J. Acts 166 (1784) .............. 12

New York:

Act of April 1, 1775, 5 Colonial Laws of New

York 732 (1894) ....................................................... 12

North Carolina:

Act of April 8, 1777, N.C. Laws, 1777, Ch. 1,

in 24 N.C. State Recs. 1, 1 (1905) ....................12, 14

Pennsylvania:

Act of March 20, 1780, 10 Penn. Stat. 144

(1904)........................................................... 12, 14-15

Rhode Island:

Act of the Last Monday in October, 1779, R.I.

Acts & Resolves, 1779, reprinted in II Part 12

United States Selective Service System, Military Obligation: The American Tradition 144

(Arthur Vollmer, compiler 1947) ........................... 15

South Carolina:

Act of March 28, 1778, 9 S.C. Stat. 682 ..........13, 15

Virginia:

Act, April 1757, 7 Va. Laws 93, 93 (W. Hening

1820) ........................................................................ 13

Collections:

United States Selective Service System, Military Obligation: The American Tradition (Arthur Vollmer, compiler 1947) (14 volumes) .... 10-11

v

II Part 3 United States Selective Service System,

Military Obligation: The American Tradition

(Arthur Vollmer, compiler 1947) ........................... 14

II Part 12 United States Selective Service System, Military Obligation: The American Tradition (Arthur Vollmer, compiler 1947) .................... 15

Historical Materials (listed chronologically)

Letter from George Washington to William Livingston (Jan. 24, 1777), https://founders.archives.

gov/documents/Washing ton/03-08-02-0153 ......... 16

Continental Congress, Report of a committee on a

military peace arrangement (Oct. 23, 1783), in

25 Journals of the Continental Congress 722

(Gaillard Hunt, ed. 1922) ................................. 16-17

Continental Congress, Report of a committee on a

military peace establishment (Oct. 23, 1783),

https://founders.archives.gov/ documents/Hamilton/01-03-02-0252 ....................................... 16-17

The Records of the Federal Convention of 1787

(Max Farrand, ed. 1911) ................................... 18-20

The Federalist No. 29 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) ............................. 20-21

George Washington, Address to the Third Congress,

Second Session (Nov. 19, 1794), in George Washington, A Collection of the Speeches of the President of the United States to Both Houses of Congress, at the Opening of Every Session, with

Their Answers 72 (1796) .................................. 21-22

vi

John Sevier, Second Inaugural Address (Sept. 22,

1797), in John Sevier, Executive Journal of Gov.

John Sevier (Samuel C. Williams, ed.), East

Tenn. Hist. Soc. Pubs. Part II.2 135 (1930), available at http://teachtnhistory.org/file/1930%

20Executive%20Journal%20of%20Gov.%20

John%20Sevier,%20Cont.%20(Williams).pdf........ 22

Jabez Parkhurst, An oration, delivered on the Fourth

of July, 1798, in the Presbyterian Church, at Newark, before a numerous audience, assembled to

celebrate the twenty-second anniversary of American independence (1798), Evans Early American

Imprint Collection Text Creation Partnership,

https://quod.lib.umich.edu/e/evans/N25802.

0001. 001/1:2?rgn=div1;view=fulltext ........... 22-23

Briefs and Petitions

Brief of Neal Goldfarb as Amicus Curiae in Support

of Respondents, New York State Rifle & Pistol

Assn. v. Corlett, No. 20-843 (U.S. filed Feb. 12,

2021) .......................................................................... 2

Brief of Neal Goldfarb as Amicus Curiae in Support

of Respondents, Holloway v. Wilkinson, No. 20-782

(U.S. filed Dec. 3, 2020) .................................................. 2

Pet. for Writ of Certiorari, New York State Rifle &

Pistol Assn. v. Corlett, No. 20-843 (U.S. filed

Dec. 17, 2020)............................................................ 2

Petition for Writ of Certiorari, Holloway v. Wilkinson,

No. 20-782 (U.S. filed Dec. 3, 2020) ............................... 2

vii

Other Materials

Neal Goldfarb, A Lawyer’s Introduction to Meaning

in the Context of Corpus Linguistics, 2017 BYU

L. Rev. 1359 (2018) ................................................... 6

Neal Goldfarb, A (Mostly Corpus-Based) Reexamination of D.C. v. Heller and the Second

Amendment, bit.ly/Goldfarb2dAmAnalysis

(2019)................................................................... 1, 23

Neal Goldfarb, Artis v. District of Columbia, part 2:

Units of Meaning and Dictionary Definitions,

LAWnLinguistics (Feb. 27, 2018), bit.ly/Artis

UnitsMeaning ........................................................... 6

Neal Goldfarb, Briefs, LAWnLinguistics,

bit.ly/GoldfarbBriefs ................................................. 1

Neal Goldfarb, LAWnLinguistics.com .......................... 1

Neal Goldfarb, Papers, LAWnLinguistics,

bit.ly/GoldfarbPapers ............................................... 1

Interest of Amicus1

Amicus Neal Goldfarb is an attorney with an interest and expertise in linguistics, and in applying the

insights and methodologies of linguistics to legal interpretation. He has written about the latter topic extensively, in papers, amicus briefs, and blog posts.2

Amicus’s interest in this case stems from his having carried out a corpus-linguistic analysis of the Second Amendment’s operative clause (“the right of the

people to keep and bear Arms”), which shows that the

Court in District of Columbia v. Heller, 554 U.S. 570

(2008), was mistaken about the Second Amendment’s

original meaning.3

Introduction and

Summary of Argument4

The petition in this case is one of several currently

pending that seek review of decisions rejecting claimed

1. All parties were timely notified and have consented in writing

to the filing of this brief. No party’s counsel authored any part

of this brief. Nobody other than amicus contributed any funds

toward the brief’s preparation or submission.

2. Amicus blogs at LAWnLinguistics. Links to his articles and

briefs are available at bit.ly/ GoldfarbPapers and bit.ly/Gold

farbBriefs, respectively.

3. Neal Goldfarb, A (Mostly Corpus-Based) Reexamination of

D.C. v. Heller and the Second Amendment, (2019) bit.ly/Gold

farb2dAmAnalysis (“Goldfarb Analysis”).

4. This brief follows two typographic conventions generally followed in linguistics: (a) Italics signal that a word or phrase is

being used to refer to itself as an expression. E.g., “The word

language has eight letters.” (b) ‘Single quotation marks’ are

2

denials of rights under the Second Amendment.5 Amicus has filed briefs in two of those cases, opposing the

petitions: New York State Rifle & Pistol Assn. v.

Corlett, No. 20-843 and Holloway v. Wilkinson, No. 20782. In those briefs, amicus has argued (1) that the

issue each petition seeks to raise should not be decided

until the Court has considered the challenge to Heller

that is posed by his analysis (and by other corpus-based

analyses of the Second Amendment), and (2) that the

Court should not address the substance of that challenge until scholars and advocates on all sides of the

gun-rights issue have had an opportunity to debate the

corpus evidence, and the issues that would follow from

a conclusion that Heller was wrongly decided.

Amicus submits that those same grounds militate

against granting the petition in this case. But rather

than repeat the arguments in his previous briefs, he

will address an issue that his corpus analysis did not

deal with: the original meaning of well regulated militia.

As amicus will show, Heller was mistaken in its interpretation of well regulated militia. That conclusion

is based both on flaws in the opinion’s reasoning and

on evidence of 18th-century linguistic usage.

Flaws in Heller’s reasoning. The Heller opinion’s reasoning was flawed in two respects. First, it

failed to heed the bedrock interpretive principle that

used to enclose statements of the meaning of a word or phrase.

E.g., “Closed means ‘not open.’”

5. See, e.g, Petition for Writ of Certiorari, New York State Rifle

& Pistol Assn. v. Corlett, No. 20-843 (U.S. filed Dec. 17, 2020);

Petition for Writ of Certiorari, Folajtar v. Wilkinson, No. 20812 (U.S. filed Nov. 24, 2020).

3

words must be understood in light of their context, and

not in isolation. As applied to the interpretation of well

regulated militia, that principle required the Court to

consider the possibility that the phrase as a whole had

an accepted meaning that differed in some way from

the separate meanings of the words that were its component parts. But that’s not what the Court did. Instead, it first interpreted militia out of context, and

then moved on to interpret well regulated out of context.

Second, Heller’s reasoning as to well regulated militia is flawed even when considered on its own terms.

Under the Court’s interpretation, a well regulated militia had the following defining characteristics:6

1. It consisted of “all males physically capable of

acting in concert for the common defense.”

2. It was something distinct from, and apparently

unconnected to, “the state- and congressionallyregulated military forces described in the Militia

Clauses [of the Constitution.]”

3. It was subject to “proper discipline and training,” despite the apparent absence of any command structure (or indeed of any organizational

structure) capable of imposing such discipline

and training.

The third characteristic, having to do with training

and discipline, is inconsistent with the first two, which

entail a lack of organization.

18th-century usage. The Court in Heller did not

attempt to determine how well regulated militia was

6. 554 U.S. at 596.

4

used during the 184 years between the settlement of

Jamestown and the ratification of the Second Amendment. Nor did it consider the use during that period of

phrases such as regulate the militia, regulating the militia, and regulation of the militia

In an effort to answer the questions that the Court

did not ask, Amicus has undertaken an examination of

the usage of well regulated militia, and of phrases such

as those above, and the results of that examination do

not support the interpretation in Heller. Quite the contrary: the usage evidence points toward the conclusion

that well regulated militia was most likely understood

to refer to a militia that was under the regulation of

the relevant colonial or state government.

Argument

I.

Heller’s analysis of well regulated militia

was flawed.

A. It was inappropriate to interpret militia

and well regulated independently of one

another, rather than interpreting the

phrase as an integrated linguistic unit.

In seeking to determine the Founding Era meaning

of well regulated militia, the Court in Heller proceeded

on the implicit assumption that it was sufficient to

examine militia separately from well regulated, without considering the possibility that the phrase was

used and understood in such a way that the meaning

of the whole wasn’t simply the sum of the meanings of

its separate components.7

7. 554 U.S. at 587.

5

The Court interpreted militia to mean “all males

physically capable of acting in concert for the common

defense,”8 and not (as the petitioners had argued) “the

state- and congressionally-regulated military forces described in the [Constitution’s] Militia Clauses.”9 Having thus interpreted the third word in well regulated

militia, the Court moved on to the first two: “The adjective ‘well-regulated’ implies nothing more than the

imposition of proper discipline and training.”10

By extracting militia and regulated from the phrase

in which they occurred, the Court acted contrary to the

“fundamental principle…that the meaning of a word

cannot be determined in isolation, but must be drawn

from the context in which it is used.”11 That principle

was expressed evocatively by Learned Hand 80 years

ago: “Words are not pebbles in alien juxtaposition” he

said; they “have only a communal existence” and “the

meaning of each interpenetrate[s] the other[.]”12 And

remarkably, Hand’s statement anticipated one of the

most important insights that would later emerge from

corpus linguistics, and in particular from corpus-based

lexicography beginning in the 1980s. That insight is

that in considering the meanings of words as used in

context, it will often make sense to view the basic unit

8. Id. at 595 (cleaned up).

9. Id. at 596 (cleaned up).

10. Id. at 597 (cleaned up).

11. Deal v. United States, 508 U.S. 129, 132 (1993) (per Scalia, J.).

12. NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941) (L.

Hand, J.)), quoted with approval in King v. St. Vincent's Hosp.,

502 U.S. 215, 221 (1991).

6

of meaning as including not just the word itself, but

also one or more of the words that accompany it.13

Although that suggestion might seem counterintuitive, the Court went expressed a similar view in a

recent case that concerned the tolling of a statute of

limitations:

The District offers no reason why, in interpreting “tolled” as used in § 1367(d), we should home

in only on the word itself, ignoring the information about the verb’s ordinary meaning gained

from its grammatical object. Just as when the object of “tolled” is “bell” or “highway traveler,”

the object “period of limitations” sheds light on

what it means to “be tolled.”14

One could rephrase this passage, with no appreciable

change in meaning, by saying, “What we are concerned

with here is not the meaning of the verb ‘toll’ by itself,

but the meaning of the phrase ‘toll a period of limitations.’”

So the approach to word meaning that amicus takes

here is similar in substance to the Court’s approach in

Artis and very much in the spirit of the statement by

Learned Hand.15 In the present context, that approach

13. Neal Goldfarb, A Lawyer’s Introduction to Meaning in the

Context of Corpus Linguistics, 2017 BYU L. Rev. 1359, 137887 (2018).

14. Artis v. District of Columbia, 583 U.S. __, 138 S. Ct. 594, 60304 (2018).

15. For further discussion of this approach in the context of Artis,

see Neal Goldfarb, Artis v. District of Columbia, part 2: Units

of Meaning and Dictionary Definitions, LAWnLinguistics

(Feb. 27, 2018), bit.ly/ArtisUnitsMeaning.

7

calls for treating the full phrase well regulated militia

as the unit of meaning that is at issue. And in investigating the use of that phrase in 18th-century America,

it will be informative to look at the use of regulate and

regulation in contexts in which it was the militia that

was referred to as the entity being regulated.

Those issues will be addressed in part II of this

brief, but before turning to them, it will be worthwhile

to point out that Heller’s interpretation of well regulated militia runs into problems even when considered

on its own terms.

B. Heller’s separate interpretations of

militia and well regulated don’t cohere

when they are combined into an

interpretation of the full phrase.

As noted above, Heller’s interpretation of well regulated militia had two components:

1. Militia was interpreted to mean “all males physically capable of acting in concert for the common

defense,”16 and as not referring to what the Court

called “the organized militia”: the “state- and

congressionally-regulated military forces” that

are the subject of the militia clauses of the Constitution.17

2. Well regulated was interpreted as “[implying] nothing more than the imposition of proper discipline and training.”18

16. 554 U.S. at 595 (cleaned up).

17. Id. at 596.

18. Id. at 597.

8

Given the conclusion that the militia to which the

Second Amendment refers was not the “organized

militia,” it follows that what the Second Amendment

refers to as “the militia”— essentially the entire ablebodied male population of the 13 states—amounted to

what we can call the unorganized militia. But that

creates a problem for Heller’s interpretation: if the militia was unorganized, who (or what entity) could have

imposed the discipline and training that would have

been needed in order to convert the (unorganized) militia into a well regulated militia?

It seems unlikely that the necessary command

structure could have emerged spontaneously, from the

bottom up, from the overall population of able-bodied

males, except perhaps in scattered areas. And although

Heller rejected the argument that what the Second

Amendment referred to was the militias that were organized and controlled by each colony, and (after Independence) by each state, the reality was that whatever discipline and training was imposed on the ablebodied male population, it was the “organized militias’

that imposed it.

When one keeps in mind that participation in the

various state militias was mandatory for all ablebodied males within a specified age-range (subject to

limited exemptions), it is difficult to make sense of the

idea that “the militia” as described by Heller was something separate and apart from the state militias.19

19. The Court suggested in Heller that if the Second Amendment

were interpreted as protecting “no more than the right to

keep and use weapons as a member of an organized militia,”

as the petitioners contended, Congress would be able to eviscerate that right by invoking its Article I power over the mil-

9

II. Evidence of 18th-century usage indicates

that well regulated militia was most likely

understood to denote a militia organized

and regulated by the government of the

colony or state.

The discussion above has shown that Heller’s interpretation of well regulated militia doesn’t hold up to

scrutiny, but it leaves open the question of how well

regulated militia was actually used during the mid-tolate 18th century, and therefore of how it was likely to

have been understood.

In this section, amicus addresses that question. He

does so by presenting the relevant linguistic evidence,

which includes not only the use of well regulated militia, but also of phrases such as regulate the militia, regulating the militia, and regulation of the militia. While

none of those is the precise phrase used in the Second

Amendment, they provide relevant evidence. As will be

itia. Under that interpretation, the Court said, “the Second

Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them.” 554 U.S. at 600. But that argument fails.

The petitioners had framed their argument on the assumption that the meaning of bear arms had two separate components: (1) a kind of action (carrying weapons) and (2) the context in which that action was embedded (serving in the

militia). But as is shown by amicus’s analysis, that framing

was mistaken. The corpus data suggests that bear arms was

understood to mean (depending on the context) ‘serve in the

militia,’ ‘engage in combat,’ and so on. Goldfarb Analysis 3952. Under that interpretation, the federal government’s power to act in the way described by the Court would have been

barred by the Second Amendment itself.

10

seen, the most important interpretive issue regarding

well regulated militia is to determine the entity that is

doing the regulating. And when all the evidence is

considered, it points toward the conclusion that well

regulated militia was most likely understood to refer

to a militia that was under the regulation of the relevant colonial or state government.

The Court should note that the discussion below

does not include any uses of well regulated militia that

occur in state constitutional provisions; such provisions are not informative with regard to the issue

here, because for purposes of the present discussion

they pose the same interpretive issue as is posed by the

use of well regulated militia in the Second Amendment

itself.20

A. Colonial and state militia statutes

Each of the 13 colonies (and after Independence,

the original 13 states) enacted a series of statutes establishing a militia and setting out detailed and comprehensive rules governing it.21

20. Note also that in some of the quotations that are presented,

nonsubstantive changes have been in the interest of readability without any mention in the citation. These include

matters such as indenting the first line of some paragraphs,

changing Mr Mason to Mr. Mason, and removing italicization

that seemed to reflect merely a stylistic choice that now reads

merely as archaic. However, spelling generally has not been

modernized

21. For a compilation of all militia statutes enacted before the ratification of the Constitution, see United States Selective Service System, Military Obligation: The American Tradition

(Arthur Vollmer, compiler 1947) (14 volumes) (“Military Obligation”). The series is subtitled “A Compilation of the Enact-

11

Many of these statutes used the phrase well regulated militia and phrases such as regulating the militia,

typically in the title, the preamble, or both. As is shown

by the examples provided here, the use of those phrases

makes clear that the concept of “regulating” the militia

was understood to entail regulation by the government,

and that in a “well regulated militia” the regulation

was understood to be regulation by the government.

1. “regulating the militia,” “regulation of the

militia,” “regulate the militia,” etc.

In many of the colonies and states, the militia statutes had titles indicating that the statute’s purpose (or

one of its purposes) was to “regulate” the militia.

Those titles represent clear examples of phrases such

as “regulating the militia,” “regulation of the militia,”

and “regulate the militia” being used to denote governmental regulation of the militia.

A representative sample of such titles is set out

below; In many colonies/states, a series of statutes

bearing such titles were enacted over a period of

several decades.

Connecticut (1784):

An Act for forming, regulating, and conducting

the military Force of this State.22

ments of Compulsion from the Earliest Settlements of the Original Thirteen Colonies in 1607 Through the Articles of Confederation 1789.”

22. Act (undated), Conn. Acts & Laws 144, 144 (1784).

12

Massachusetts (1776):

An Act for forming and regulating the Militia

….23

New Hampshire (1786):

An Act for forming and regulating the Militia

….24

New Jersey (1781):

An Act for the regulating, training, and arraying

of the Militia….25

New York (1778):

An Act for the better regulating the Militia of the

Colony of New York.26

North Carolina (1778/79):

An Act to Regulate and Establish a Militia in this

State.27

Pennsylvania (1780):

An act for the regulation of the militia ….28

23. Act of Jan. 22, 1776, 5 Mass. Acts & Resolves 445, 445 (1886)

24. Act of June 24, 1786, 5 Laws of N.H. 12, 12 (Henry Harrison

Metcalf, ed. 1916).

25. Act of Jan. 8, 1781, N.J. Acts 166, 166 (1784)

26. Act of April 1, 1775, 5 Colonial Laws of New York 732, 732

(1894).

27. Act of April 8, 1777, N.C. Laws, 1777, Ch. 1, in 24 N.C. State

Recs. 1, 1 (1905).

28. Act of March 20, 1780, 10 Penn. Stat. 144, 144-45 (1904).

13

South Carolina (1778):

An Act for the regulation of the Militia ….29

Virginia (1756):

An Act for the better regulating and disciplining

the Militia30

2. “well regulated militia”

Many of the colonial and state militia statutes included preambles stating the statute’s purpose(s) or

identifying the factors that motivated the statute’s enactment, with the preamble typically being followed by

several pages of rules governing the militia’s organization and operation. And in many of those preambles,

the stated purpose or motivation was the preservation

of a “well regulated militia.” Thus, the rules enacted

by the colonial and state legislature enabled and governed the “imposition of proper discipline and training” that was the hallmark of a well regulated militia.

A representative sample of the statutory preambles

is set out below. They are all from the period after the

colonies declared their independence, because those

are the closest in time to the framing and ratification

of the Second Amendment

Connecticut (1784):

Whereas the Defence and Security of all free

States depends (under God) upon the Exertions

of a well regulated and disciplined Militia.

Wherefore,

29. Act of March 28, 1778, 9 S.C. Stat. 682, 682.

30. Act, April 1757, 7 Va. Laws 93, 93 (W. Hening 1820).

14

Be it Enacted…31

Delaware (1785):

Whereas a well regulated Militia is the proper

and natural defence of every free state; and as

the laws heretofore made for the regulation

thereof within this state are expired, and it is

necessary that a militia be established;

Be it therefore enacted…32

North Carolina (1778/79):

Whereas, a well regulated militia is absolutely

necessary for the Defending and Securing the

Liberties of a free State

Be it therefore Enacted…33

Pennsylvania (1780):

Whereas…:

And whereas a well regulated militia is the only

safe and constitutional method of defending a

free state, as the necessity of keeping up a

standing army, especially in times of peace, is

thereby superceded:

…

Therefore:

Be it enacted…34

31. Act (undated), Conn. Acts & Laws 144, 144 (1784)

32. Act of June 4, 1785, Del. Laws, June 1785, reprinted in II Part

3 Military Obligation, supra note 21, at 26.

33. Act of April 8, 1777, N.C. Laws, 1777, Ch. 1, in 24 N.C. State

Recs. 1, 1 (1905).

34. Act of March 20, 1780, 10 Penn. Stat. 144, 144-45 (1904)

(section numbering omitted).

15

Rhode Island (1779):

Whereas the Security and Defense of all free

States essentially depend, under God, upon the

Exertions of a well regulated Militia: And whereas…: Wherefore, for the better forming, regulating and conducting the military Force of this

State, Be it Enacted by this General Assembly,

and by the Authority thereof it is hereby Enacted…35

South Carolina (1778):

Whereas, the establishment of a well regulated

militia in a free State, will greatly conduce to its

happiness and prosperity, and is absolutely essential to the preservation of its freedom; and

whereas, it is necessary that the laws hitherto

enacted for the regulation of the militia of this

State, be amended….

Be it therefore enacted…36

B. George Washington (1777)

Early in the Revolutionary War, George Washington wrote to William Livingston, the governor of New

Jersey complaining about the lack of discipline in the

New Jersey militia and urging the enactment of “a well

regulated Militia Law”:

The irregular and disjointed State of the Militia

of this province, makes it necessary for me to inform you, that unless a Law is passed by your

35. Act of the Last Monday in October, 1779, R.I. Acts & Resolves,

1779, reprinted in II Part 12 Military Obligation, supra note

21, at 144.

36. Act of March 28, 1778, 9 S.C. Stat. 682, 682.

16

Legislature to reduce them to some order, and

oblige them to turn out in a different Manner

from what they have hitherto done, we shall

bring very few into the Feild, and even those few,

will render little or no Service.

Their Officers are generally of the lowest Class

of people, and instead of setting a good Example

to their Men, are leading them into every kind of

Mischeif, one Species of which is, plundering the

Inhabitants under pretence of their being Tories.

A Law should in my Opinion be passed, to put a

stop to this kind of lawless Rapine, for unless

there is something done to prevent it, the people

will throw themselves of choice into the hands of

the British Troops.

But your first object should be a well regulated Militia Law. The people, put under good Officers, would behave in quite another manner,

and not only render real Service as Soldiers, but

would protect, instead of distressing the Inhabitants.37

C. Report to the Continental Congress

(1783)

As the Revolutionary War was drawing to a close, a

committee of the Continental Congress prepared a

report making recommendations as to the structure

and organization of the post-war U.S. military. The

report (written by Alexander Hamilton) undeniably regarded well regulated militias as being under govern37. Letter from George Washington to William Livingston (Jan.

24, 1777), https://founders.archives.gov/documents/Washing

ton/03-08-02-0153.

17

ment regulation: it recommended that as Congress considered “the means of national defence,” it “ought not

to overlook that of a well regulated militia,” and said

that “as the keeping up such a militia and proper

arsenals and magazines by each State is made a part of

the Confederation, the attention of Congress to this

object becomes a constitutional duty.”38

D. Lafayette (1786)

In February 1786, several years after he had led

American troops in the final battles of the Revolutionary War, and at a time when the inadequacies of the

Articles of Confederation had become apparent, the

Marquis de Lafayette wrote a letter to George

Washington in which he lamented those inadequacies

and reflected on what steps Congress ought to take to

remedy them. Those steps included “strengthen[ing]

the Confederation,” empowering Congress to regulate

trade, and—most important for purposes of this

brief—“establish[ing] a well Regulated Militia.”39

So again, one sees evidence that the regulation that

was a hallmark of a well regulated militia was regarded

as being imposed from top down, by the government,

rather than emerging spontaneously, from the bottom

38. Continental Congress, Report of a committee on a military

peace arrangement (Oct. 23, 1783), in 25 Journals of the Continental Congress 722, 741 (Gaillard Hunt, ed. 1922) (cleaned

up). Information about the report is provided in the notes to

the report at Founders Online, https://founders.arch ives.gov/

documents/Hamilton/01-03-02-0252.

39. Letter from Lafayette to George Washington (Feb. 6, 1786),

https://founders.archives.gov/documents/Washington/04-03-0

2-0461 (cleaned up).

18

up, as the Court in Heller seems to have assumed was

the case.

E. The Constitutional Convention (1787)

On August 18, 1787, there was debate regarding the

power to be given to the federal government regarding

the militia. The power that was under discussion was

repeatedly referred to as the power to “regulate” the

militia.

1. George Mason

In the following statements, Mason argued that the

power of “regulating the militia” should be given to the

federal government, on the ground that if that function

were left to the states, it would be impossible to attain

the uniformity of regulation that he thought would be

necessary:

Mr. Mason introduced the subject of regulating

the militia. He thought such a power necessary

to be given to the Genl. Government. He hoped

there would be no standing army in time of peace,

unless it might be for a few garrisons. The Militia

ought therefore to be the more effectually prepared for the public defence. Thirteen States will

never concur in any one system, if the displining

[sic] of the Militia be left in their hands. If they

will not give up the power over the whole, they

probably will over a part as a select militia. He

moved as an addition to the propositions just

referred to the Committee of detail, & to be refer-

19

red in like manner, “a power to regulate the militia.”40

* * *

Mr. Mason moved as an additional power to make

laws for the regulation and discipline of the Militia of the several States reserving to the States

the appointment of the Officers. He considered

uniformity as necessary in the regulation of the

Militia throughout the Union.41

2. Oliver Ellsworth

Ellsworth favored giving the federal government

some power to regulate the militia, but less power that

was advocated by Mason:

Mr. Elseworth was for going as far in submitting

the militia to the Genl Government as might be

necessary, but thought the motion of Mr. Mason

went too far. He (moved) that the militia should

have the same arms (& exercise and be under

rules established by the Genl Govt. when in actual service of the U. States and when States neglect to provide regulations for militia, it shd. be

regulated & established by the Legislature of

U.S.)42

3. James Madison

Like Mason, Madison favored giving plenary power

to regulate the militia to the federal government. While

40. 2 The Records of the Federal Convention of 1787 326 (Max

Farrand, ed. 1911).

41. Id. at 330.

42. Id. at 330-31.

20

Madison didn’t use the phrase well regulated militia, it

is clear that he, like those quoted above, regarded the

regulation of the militia as a governmental function:

“Mr. Madison thought the regulation of the Militia

naturally appertaining to the authority charged with

the public defence.”43

F. The Federalist No. 29 (Hamilton 1788)

The Federalist No. 29 was devoted to the subject of

the militia, and the views it expressed were of a piece

with the previously-quoted statement from the committee report to the Continental Congress. However,

Hamilton expressed his views at greater length and in

more detail than he had in the committed report.

In the following excerpt, Hamilton speaks of “regulating the militia” and of “the regulation of the militia,” making clear that he regarded those functions as

belonging to government:

The power of regulating the militia, and of commanding its services in times of insurrection and

invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy….

…This desirable uniformity can only be accomplished by confiding the regulation of the militia

to the direction of the national authority….44

Consistent with that view, Hamilton said that “if a

well-regulated militia be the most natural defense of a

free country, it ought certainly to be under the regula43. Id. at 332.

44. The Federalist No. 29, at 182 (Alexander Hamilton) (Clinton

Rossiter ed., 1961)

21

tion and at the disposal of that body which is constituted the guardian of the national security”—i.e. the

federal government.45

Finally, Hamilton talked about the amount of training that would be necessary if order for “the great body

of the yeomanry, and…the other classes of the citizens”

to “acquire the degree of perfection which would entitle them to the character of a well-regulated militia.”

He very clearly thought that such training would be so

burdensome as to “be a real grievance to the people,

and a serious public inconvenience and loss.”46 So it is

probably safe to assume that Hamilton would have

disagreed with Heller’s view of what a well regulated

militia amounts to.

G. George Washington (1794)

In an address to Congress during his second term

as President, Washington returned to the themes of his

letter to George Livingston 17 years earlier: the inadequacies of the militias and the establishment of a well

regulated militia as being governmental responsibility:

[I]t ought not to be forgotten, that the militia

laws have exhibited such striking defects, as

could not have been supplied but by the zeal of

our citizens. Besides the extraordinary expense

and waste, which are not the least of the defects,

every appeal to those laws is attended with a

doubt of its success.

The devising and establishing of a well-regulated militia, would be a genuine source of legis45. Id. at 183.

46. Id. at 184.

22

lative honour, and a perfect title to public gratitude. I therefore entertain a hope, that the present session will not pass, without carrying to its

full energy, the power of organizing, arming and

disciplining the militia….47

H. John Sevier, governor of Tennessee

(1797)

In an address to the Tennessee legislature in 1797,

Gov. John Sevier expressed much the same sentiment

as Washington had in 1794. He “recommend[ed] to [the

legislature’s] consideration as a present and necessary

measure a well regulated militia law, calculated to establish discipline and to ensure punctual attendance at

private and general musters.”48 So Sevier understood

the job of regulating the militia as belonging to the government, as had Washington, Lafayette, and Hamilton

before him.

I. Jabez Parkhurst (1798)

In a Fourth of July oration delivered in 1798, the

speaker (one Jabez Parkhurst) listed several means by

47. George Washington, Address to the Third Congress, Second

Session (Nov. 19, 1794), in George Washington, A Collection

of the Speeches of the President of the United States to Both

Houses of Congress, at the Opening of Every Session, with

Their Answers 72, 78 (1796).

48. John Sevier, Second Inaugural Address (Sept. 22, 1797), in

John Sevier, Executive Journal of Gov. John Sevier (Samuel

C. Williams, ed.), East Tenn. Hist. Soc. Pubs. Part II.2 135,

147 (1930) (cleaned up), available at http://teachtnhistory.org/

file/1930%20Executive%20Journal%20of%20Gov.%20John%

20Sevier,%20Cont.%20(Williams).pdf.

23

which “a free people [could] preserve their liberties,”

one of which was “a well regulated MILITIA, equal at

least to the defense of the nation against sudden foreign attacks or domestic violence.”49 What is notable

for purposes of this brief is Parkhurst’s assumption

that a well regulated militia would provide an effective

defense against “sudden foreign attacks” (emphasis

added). He therefore must have regarded a well regulated militia as being capable of acting quickly in response to unforeseen events. It seems unlikely that an

unorganized militia of the kind referred to in Heller

would have been capable of that kind of swift reaction.

Parkhurst also said that having a well regulated

militia “puts arms in the hands of every man”—a statement that is ambiguous, but that undercuts Heller under both interpretations.50 Interpreted literally, Parkhurst’s statement linked individual possession of weapons with service in the militia, and portrayed such

service as bringing about the arming of “every man.”

That relationship between militia service and being

armed is precisely the opposite of what Heller posited,

which was that it was the existence of an armed

citizenry that made it possible for the militia to exist.

49. Jabez Parkhurst, An oration, delivered on the Fourth of July,

1798, in the Presbyterian Church, at Newark, before a numerous audience, assembled to celebrate the twenty-second anniversary of American independence (1798), Evans Early American Imprint Collection Text Creation Partnership,

https://quod.lib.umich.edu/e/evans/N25802.0001.001/1:2?rgn

=div1;view=fulltext.

50. Id.

24

Under a figurative reading, on the other hand,51 the

phrase “[putting] arms in the hands of every man”

would probably have been understood to mean something like ‘to make every man a soldier.’ That would

weigh against Heller’s interpretation of bear arms and

of the relationship between the militia service on the

one hand and the right to bear arms on the other.

J. Summary

The Court’s view in Heller of what a well regulated

militia amounted to is quite different from the view

that is uniformly expressed, or at least presupposed, in

the statutes and statements set out above. Heller

cannot possibly be squared with this evidence.

Moreover, amicus has found no evidence that would

support the interpretation adopted in Heller. While the

usage data includes uses that don’t permit one to reach

a conclusion either way, amicus did not come across

any uses that could reasonably be read as supporting

Heller’s interpretation.

This is not to say that no such evidence exists. But

given what this brief has shown, the burden is on supporters of Heller’s interpretation to bring any such evidence to light.

51. Cf. Goldfarb Analysis 25-27 (discussing the many figurative

uses of arms).

25

Conclusion

The petition for certiorari should be denied.

Respectfully submitted,

March 12, 2021

Neal Goldfarb

1301 Fairmont St., N.W.

Washington, D.C. 20009

(202) 262-7886

goldfarbneal@gmail.com

Counsel for Amicus Curiae