Amicus Curiae Brief — Perpich v. Department of Defense

In THE

Supreme Court of the United States

OcToBEeR TERM, 1989

Ruby PERPICH, GOVERNOR OF THE

STATE OF MINNESOTA, et al.,

. Appellants,

UNITED STATES DEPARTMENT OF DEFENSE, et al.

Appellees.

On Appeal from the United States Court of Appeals

for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF OF AMICUS CURIAF

FIREARMS CIVIL RIGHTS LEGAL DEFENSE FUND

IN SUPPORT OF APPELLEES

STEPHEN P. HALBROOK *

Suite B-3

10606 Judicial Drive

Fairfax, VA 22080-5165

(703) 385-8610

RoBert DowLut

FIREARMS CIVIL RIGHTS

LEGAL DEFENSE Fur

1230 16th Street, N.W.

Washington, D.C. 20086

(202) 828-6345

Counsel for Amicus Curiae

* Counsel of Record

BEST AVAILABLE COPY |

In THE

Supreme Court of the United States

OcToBEerR TERM, 1989

No. 89-542

Rupy PERPICH, GOVERNOR OF THE

STATE OF MINNESOTA, et al.,

7 Appellants,

UNITED STATES DEPARTMENT OF DEFENSE, et al.,

Appellees.

On Appeal from the United States Court of Appeals

for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

OF FIREARMS CIVIL RIGHTS LEGAL DEFENSE FUND

COMES NOW the Firearms Civil Rights Legal De-

fense Fund, by counsel, pursuant to Rule 37 of the Su-

preme Court Rules, and hereby moves to file an amicus

curiae brief, and in support thereof shows the following:

The interest for the amicus is that the Firearms Civil

Rights Legal Defense Fund is a non-profit organization

established under Section 501(c) (3) of the Internal Rev-

enue Code to litigate on matters affecting the Second

Amendment to the Constitution. It has undertaken sub-

stantial historical research on the militia and the intent

of the Framers of the Constitution regarding the militia.

A primary issue in this case is the meaning of the term

“well regulated militia” as used in the Second Amend-

ment and the simple term “militia” as used in Art. I.

Section 8 of the Constitution.

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1230 16th Street, NW.

Washington, D.C. 20036

(202) 828-6345

Counsel for Amicus Curiae

* Counsel of Record

TABLE OF CONTENTS

INTEREST OF AMICUS CURA

SUMMARY OF ARGUMENT... —

I. THE FRAMERS INTENDED THE MILITIA

TO BE COMPOSED OF THE POPULACE AT

LARGE, AND CONSIDERED A SELECT

MILITIA LIKE THE NATIONAL GUARD TO

BE PART OF THE STANDING ARR X

r

E. The State Ratifying Conventions

F. The Adoption of the Second Amendment

G. The First Federal Militia aet

. APPLICATION OF THE TEXT AND FRAM-

ERS’ INTENT TO THE STATUTORY

Page

> © Ww W

la

ii

TABLE OF AUTHORITIES

Cases: Page

Maryland v. United States, 381 U.S. 41 (1965) 16

Nunn v. State, 1 Ga. (1 Kel.) 243 (184) 9

State v. Grayston, 163 S.W.2d 335 (Mo. 1942) 17

State v. Wagener, 77 N.W. 425 (Minn. 1898) 17

United States v. Miller, 307 U.S. 174 (1939) 15, 16

U.S. Constitution:

Article I, Section g SA SES TR passim

ATA PT AAI 2

AEE Se RE are eS passim

r 2

/ .. 3

Statutes and Bills:

e . 14

e ee a 14

r ee ee 14

r .. 15

Act of June 15, 1933, 48 Stat. 153, 15 18

The Diek Act of 190 ccc cccccccccceccceccceeee ee. 17

Militia Act of May 8, 179222292 8, 12

H.R. 2581 (Traficant, June 2,1987).... 20

H.R. 3068 (Skelton, July 30,1987)... 20

Constitutional and Legislative History:

S. Ambrose, THE MILITARY AND AMERICAN SOocI-

— —. 17

Annals of Congress 10, 11, 12, 13

E. Colby and J. Glass, The Legal Status of the Na-

tional Guard, 29 Va.L.Rev. 839 (1943) 19

T. Coxe, “Remarks on the First Part of the Amend-

ments”, Federal Gazette & Philadelphia Evening

Post, June 18, 1789, p. 2, col. 10

M. Derthick, THE NATIONAL GUARD IN POLITICS

— — —ůů — 17

DOCUMENTARY HISTORY OF THE RATIFICATION OF

THE CONSTITUTION (M. Jensen ed. 1976) ~

ili

TABLE OF AUTHORITIES—Continued

DOCUMENTARY HISTORY OF THE RATIFICATION OF

THE CONSTITUTION (Mfm. Supp., 1976) ............

Dowlut, The Right to Arms: Does the Constitution

or the Predilection of Judges Reign?, 36 Okl. L.

1 „TTT

Dowlut & Knoop, State Constitutions and the Right

to Keep and Bear Arms, 7 Okl. City Univ. L.

Rev. 177, 197, 288-85 (1962) .................................

J. Elliot, DEBATES IN THE SEVERAL STATE CONVEN-

TIONS (Philadelphia, 1836))))))))))

J. Elliot, DEBATES ON THE ADOPTION OF THE FED-

ERAL CONSTITUTION (1849

P. Force, AMERICAN ARCHIVES (1837)

H.R. Rpt. No. 141, 73rd Cong., Ist Sess. (1933)

S. Halbrook, THAT Every MAN BE ARMED (Univ.

ff 2 Ee

Hardy, The Second Amendment and the Historiog-

raphy of the Bill of Rights, 4 J. Law & Politics 1

ARENAS EE ————

JOURNAL OF THE FIRST SESSION OF THE SENATE

(Gales & Seaton 1820) a

R. Lee, Additional Letters from the Federal

i .. T

Levinson, The Embarrassing Second Amendment,

I —?ꝝ!᷑ͥ4

Lund, The Second Amendment, Political Liberty,

and the Right to Self- Preservation, 39 Ala. L.

%%

Madison, Hamilton & Jay, THE FEDERALIST

OT (TT ————————;ĩ

MADISON PAPERS (1979000: :

Malcolm, The Right of the People to Keep and

Bear Arms: The Common Law Tradition, 10

Hastings Const. L.Q. 285 (1983))))

I THE PAPERS OF GEORGE MASON (R. Ruthland ed.

.

The Right to Keep and Bear Arms: Report of the

Subcommittee on the Constitution, Senate Judici-

ary Committee, 97th Cong., 2nd Sess. (1982)

Page

16

iv

TABLE OF AUTHORITIES—Continued

M. Schlegel, Virginia on Guard: Civilian Defense

and the State Militia in the Second World War

— . — aaa cane

Shalhope, The Ideological Origins of the Second

Amendment, 69 J. Am. History 599, 614 (1982) ..

Sprecher, The Lost Amendment, 51 Am. Bar Assn.

5. 554 & 665 (1965) (2 part)

U.S. Home DEFENSE Forces Stupy (Office of Sec.

EE .....

Virginia Declaration of Rights, Art. XIII (1776)

Wiener, The Militia Clause of the Constitution, 54

Harv. L. Rev. 181 (1940)... — —ͤ

Page

11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-542

Ruby PERPICH, GOVERNOR OF THE

STATE OF MINNESOTA, et al.,

2 Appellants,

UNITED STATES DEPARTMENT OF DEFENSE, et al.,

Appellees.

On Appeal from the United States Court of Appeals

for the Eighth Circuit

BRIEF OF AMICUS CURIAE

FIREARMS CIVIL RIGHTS LEGAL DEFENSE FUND

IN SUPPORT OF APPELLEES

INTEREST OF AMICUS CURIAE

The interests of amicus curiae are set forth in its

motion for leave to file amicus curiae brief and are

adopted herein.

SUMMARY OF ARGUMENT

The term “militia” was understood by the framers to

mean the armed populace at large. In contradistinction,

the framers considered a select militia, like the present

National Guard, to be part of the standing army. Since

the National Guard is a component of the standing army,

and is not the broad based militia as the framers in-

tended, the governor may not object to it being trained

in a foreign nation. Therefore, the result reached in

Perpich v. Department of Defense, 880 F.2d 11 (8th

Cir. 1989) (en banc), is correct.

NATIONAL GUARD TO BE PART OF THE STAND-

ING ARMY

A. The Text of the Constitution

As envisioned in the Constitution, the army and the

militia are distinct bodies. Art. I, Sec. 8 empowers Con-

gress “to declare War, . to raise and support Armies

... [and] to make Rules for the Government and Reg-

ulation of the land and naval Forces. . .” Congress is

also empowered :

To provide for calling forth the Militia to execute

the laws of the Union, suppress Insurrections and

repel Invasions;

To provide for organizing, arming, and disciplin-

ing, the Militia, and for governing such Part

them as may be in

United States, reserving to the

—1 vely,

Lr uthority

Art. II, See. 2 provides: The President shall be the

commander in chief of the Army and Navy of the United

States, and of the Militia of the several States, when

called into the actual service of the United States 1

This provision makes clear that there is no national

militia, but only a Militia of the several States“ Sim-

ilarly, the Fifth Amendment provides for grand jury

indictment “except in cases arising in the land or naval

forces, or in the Militia, when in actual service in time

of War or public danger . Thus, the militia of

the several states always retains its status as such, even

though it may be called in the “actual service” of the

United States for specified domestic purposes.

The Second Amendment guarantees: “A well regu-

lated Militia, being necessary to the security of

State, the right of the people to keep and bear Arms,

shall not be infringed.” The right is guaranteed to “the

people,” including the militia at all times. and is not lim-

ited to “the Militia, when in actual service in time of

War or public danger,” terms found in the Fifth Amend-

Finally, the Tenth Amendment states: “The powers

not delegated to the United States by the Constitution,

nor prohibited by it to the states, are reserved to the

states respectively, or to the people.” The power to raise

armies is delegated to the United States and prohibited to

the states, while the power over the militia is reserved

exclusively to the states, except as delegated to Congress

in Art. I, Sec. 8.

B. Experiences of the Revolution

From the outset of the Revolution in 1775 through the

adoption of the Militia Act of 1792, the essential char-

acter of the well regulated militia espoused by the

Founding Fathers was twofold: (1) it was composed

of the people at large, rather than a select group, and

2 its members provided and kept their own arms.

By contrast, a small body of trained professionals whose

arms were provided by government and which consti-

tuted a permanent military establishment was known as

a select militia or a standing army. While an Army may

be necessary for the common defense, military despotism

would be deterred by the constitutional militia composed

of the armed populace.

4

“A well regulated Militia, composed of the Gentlemen,

Freeholders, and other Freemen,” terms used by George

Mason in 1775, exemplify the Founders’ conception of

the militia. 1 THe Papers or Grorce MASon 215 (R.

Rutland ed. 1970). Most of the colonies used similar

language when they resolved that the inhabitants must

arm themselves and enroll in the militia. E.g., 1 P.

Force, AMERICAN ARCHIVES 1022, 1032 (1837) (Dela-

ware, Maryland). The Virginia Declaration of Rights of

1776, Art XIII, provided “that a well regulated Militia,

composed of the body of the People, trained to Arms, is

the proper, natural, and safe Defence of a free

State....”

C. The Constitutional Convention of 1787

The principles of the Revolution were remembered at

the Constitutional Convention of 1787. The members of

the convention regarded the militia as an entity of the

respective states which would be subject to federal stand-

ards, but would be under federal authority only when

called out for specified domestic purposes.

To reduce the need for a standing army, George

Mason proposed a power “to make laws for the regula-

tion and discipline of the militia of the several states.

He considered uniformity as necessary in the regu-

lation of the militia, throughout the Union.” 3 J. Elliot

DEBATES ON THE ADOPTION OF THE FEDERAL ConsTITU-

TION 443 1845/0

' Similarly. Oliver Elleworth proposed that “the militia should

have the same arms and exercise, and be under rules established by

the general government when in actual service of the United States

Id. He contended that “the whole authority over the militia

ought by no means to be taken away from the states, whose conse

quence would pine awewv *o nothing after such a sacrifice of power.”

Id. Finally, Elleworth “considered the idea of a select militia as

impracticable: and if it were not. it would be followed by a ruinous

declension of the wreat body of the militia.” Jd. at 444

Roger Sherman held that “the states might want their

militia for defense against invasions and insurrections,

and for enforcing obedience to their laws.” /d. at 445.

Mason agreed, moving that the general power would not

extend to “such part of the militia as might be required

by the states for their own use.” Id. Mason’s proposals

were then referred to committee.

When reported back to the convention, the Militia

Clause was worded almost exactly as finally adopted in

the Constitution. Id. at 464. The following explanation

ensued :

MR. KING, by way of explanation, said, that by

organizing, the committee meant, proportioning the

officers and men—by arming, specifying the kind,

size, and calibre of arms—and by disciplining, pre-

svribing the manual exercise, evolutions, .

MR. MADISON observed, that “arming,” as ex-

plained, did not extend to furnishing arms; nor the

term “disciplining,” to penalties, and courts martial

for enforcing them. Id. at 464-65.

Madison summed up the debate by remarking that “as

the greatest danger to liberty is from large standing

armies, it is best to prevent them by an effectual pro-

vision for a good militia.” Id. at 466-67. The limited

power of Congress thus extends mainly to the adoption

of uniform standards for arms and exercises, and to gov-

erning the militia when called into federal service for

specified purposes.

D. The Debate Between Federalists and Anti-Federalists

The nature of the militia and the army, and the

powers of Congress vis-a-vis the states and the people,

were fully exposited in the debate between the federalists

and anti-federalists. Madison stated it best in The Fed-

eraliat No. 46:

Let a regular army fully equal to the resources of

the country be formed, and let it be entirely at the

devotion of the Federal Government; still. . the

State governments, with the people on their side,

would be able to repel the danger... . To these

armed forces] would be opposed a militia amount-

ing to near half a million of citizens with arms in

their hands, officered by men chosen from among

themselves, fighting for their common liberties, and

7

militia? are they not ourselves. .. Congress have

no power to disarm the militia. Their swords, and

on on Ep Saas 6S ea

the birth-right of an Ame 2 DOCUMENTARY

HIsTORY OF THE RATIFICATION OF THE CONSTITU-

TION (Mfm. Supp.) at 1778-1780 (1976).

Richard Henry Lee ably articulated anti-federalist

demands which resulted in the Bill of Rights. Lee,

AppirionaAL Letrers From THE FepeRAL FARMER 53

(1788). Lee explained regarding the militia:

united and conducted by governments possessing

their affections and confidence. Besides the ad-

vantage of being armed, which the Americans pos-

sess over the people of almost every other nation,

the existence of subordinate governments to which

the people are attached and by which the militia

officers are appointed forms a barrier against the

enterprises of ambition more insurmountable than

any which a simple government of any form can

admit of.

Similarly, in The Federalist, No. 29, Alexander Hamil-

ton argued:

Little more can reasonably be aimed at with re-

spect to the people at large than to have them prop-

erly armed and equipped.

.. . This will not only lessen the call for military

establishments, but if circumstances should at any

time oblige the government to form an army of any

magnitude that army can never be formidable to the

liberties of the people while there is a large body of

citizens, little if at all inferior to them in discipline

and the use of arms, who stand ready to defend their

rights and those of their fellow citizens.

Tench Coxe, a friend of Madison and a prominent

Federalist, argued:

THE POWERS OF THE SWORD ARE IN THE

HANDS OF THE YEOMANRY OF AMERICA

FROM SIXTEEN TO SIXTY. The militia of these

free commonwealths, entitled and accustomed to

their arms, when compared with any possible army,

must be tremendous and irresistable. Who are the

A militia, when properly formed, are in fact the

people themselves, and render troops in a great

measure unnecessary... III be constitution ought

to secure a genuine [militia] and guard against a

select militia, by providing that the militia shall al-

ways be kept well organized, armed, and disciplined,

and include all men capable of bearing arms;

and that all regulations tending to render this gen-

eral militia useless and defenceless, by establishing

select corps of militia, or distinct bodies of military

men, not having permanent interests and attach-

ments in the community to be avoided. Id. at 169.

In a pasage which strikingly anticipates the adoption

of the Second Amendment, Lee stated:

These select] corps, not much unlike regular

troops, will ever produce an inattention to the gen-

eral militia; .. . w*ereas, to preserve liberty, it is

essential that the whole body of the people always

possess arms, and be taught alike, especially when

young, how to use them; nor does it follow from

this, that all promiscuously must go into actual serv-

ice every occasion. The mind that aims at a

select militia, must be influenced by a truly anti-

republican principle. Id. at 170.

E. The State Ratifving Conventions

In the state ratifying conventions, federalists and

antifederalists alike stressed che importance of the mil-

8

itia, but disagreed over whether a bill of rights was nec-

essary. John Smilie warned in the Pennsylvania conven-

tion: “Congress may give us a select militia which will,

in fact, be a standing army—or Congress, afraid of a

general militia, may say there shall be no militia at all.

Wherr a select militia is formed; the people in general

may be disarmed.” 2 DocUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION 509 (M. Jensen ed.

1976). By contrast, James Wilson argued that the power

of Congress was intended to establish a uniformity of

arms, not to actually furnish arms and thus determine

who would be armed ,

Men without a uniformity of arms, accoutrements,

and discipline, are no more than a mob in a camp.

I a soldier drops his musket, and his compan-

ion, unfurnished with one, takes it up, it is of no

service, because his cartridges do not fit it. By means

of this system, a uniformity of arms and discipline

will prevail throughout the United States. 2 J.

Elliot, DEBATES IN THE SEVERAL STATE CONVEN-

TIONS 521 (Philadelphia 1836).

In the Virginia convention, James Madison argued:

“Congress ought to have ‘he power to establish a uni-

form discipline throughout the states, and to provide

for the execution of the laws, suppress insurrections, and

repel invasions: these are the only cases wherein they

ean interfere with the militia... 3 J. Elliott,

DEBATES IN THE SEVERAL STATE CONVENTIONS 90 ( Phil-

adelphia 1836). Madison assumed that the militia con-

sisted of the whole people

If resistance should be made to the execution of

the laws. it ought to be overcome. This could be

done only in two ways—either by regular forces or

by the people.... If insurrections should arise, or

invasion should take place, the people ought unques-

tionably to be employed, to suppress and repel them,

rather than a standing army. Id. at 375."

Madison also opined that the states retained broad powers over

the militia. “I cannot conceive that this Constitution, by giving the

George Mason asked, “who are the militia, if they

the people of this country .? I ask, Who are

ilitia? They consist now of the whole people, ex-

cept a few public officers.” Ideally, the militia will al-

ways “consist of all «asses, high and low, and rich and

bor Id. at 425-26.

Based on the above and on debate concerning the right

to bear arms, the Virginia convention adopted a pro-

posed Bill of Rights including the following: “That the

people have a right to keep and bear arms; that a wel

regulated militia, composed of the body of the people,

trained to arms, is the proper, natural, and safe defence

of a free state... Id. at 659. The New York con-

vention recommended a similar provision which referred

to the militia as “the body of the people capable of bear-

ing arms.” Id., I. at 327-28.

Proposals for arms guarantees surfaced in seven state

conventions. A survey of these seven proposals indicates

that the framers of the Second Amendment had two

separate objectives in mind. The first purpose was to

recognize in general terms the importance of a militia

to a free state. The second purpose was to guarantee a

right to keep and bear arms for all traditional purposes,

including self-defense. ‘Nunn v. State, 1 Ga. (1 Kel.)

243 (1846), illustrates this early understanding.) The

second purpose was plain in the Pennsylvania, Massa-

chusetts, and New Hampshire conventions. The propos-

als from Virginia, New York, North Carolina, and

Rhode Island blended he militia purpose with the pur-

general government the power of arming the militia, takes it away

from the state governments. The power is concurrent, and not

exclusive.” Jd. at 382. Similarly, John Marshall observed “that the

power of governing the militia was not vested in the states by

implication, because, being possessed of it antecedent to the adopt

tien of the government, and not being divested of it by any grant

or restriction in the Constitution they must necessarily be as fully

possessed of it as ever they had been.” /d@. at 421

sentatives a bill of rights that ine! the following:

“The right of the people to keep and bear aims shall not

be infringed; a well armed, and well regulated militia

being the best security of a free coun no person

of

i te

pelled to render military service in person.” 1 AN

or Concress 434 June 8, 1789

The House Committee on Amendments reported M

son's proposal in this form: “A well regulated

composed of the body of the people, being the

curity of a free state, the right of the people to

bear arms shall not be infringed; but no

ligiously scrupulous shall be compelled to bear

| ANNALS oF Concress 750 ‘Aug. 17, 1789). In debate

that followed, Elbridge Gerry objected to the last phase

because “Congress can declare who are those religiously

scrupulous and prevent them from bearing arms.” He

added

What, sir, is the use of militia? It is to prevent

the establishment of a standing army, the bane of

liberty. Now, it must be evident, that, under this

provision, together with their other powers, Con-

E

FE

111

724

* Ten days later, Tench Coxe published his “Remarks on the First

Part of the Amendments.” Federal Gas- tt. 4 Philadelphia Evening

Poet, June 18, 1789, at 2 col 1. which explained the ahowe as

follows: “As civil rulers, not having their duty te the people duly

t-fore them. may attempt to tryannize, and as the military forces

which must be occasionally raised te defend our country might

pervert their power to the injury of their fellow-citizens, the people

are confirmed by the next article in their right te keep and hear

their private arms” Madisor vieed the article 12 Maneeow

Params 239-240, 257 (1979)

11

rene:

mili as to make a standing army necessary.

Whenever Governments mean to invade the rights

and liberties of the people, they always attempt to

destroy the militia, in order to raise an army upon

their ruins. Id.

Furthermore, on Wednesday, September 9, 1789, a mo-

tion in the Senate to insert “for the common defence”

next to the words “bear arms” was defeated. JOURNAL

OF THE First SESSION OF THE SENATE 77 (Gales &

Seaton 1820). Thus, an effort to restrict the right was

defeated.

The view that the final language for the Second

Amendment was a compromise to satisfy all competing

objectives of the framers is bolstered by the recent dis-

covery in James Madison’s papers of an early draft of

the Bill of Rights, in Roger Sherman’s handwriting,

which provided for a militia but no right to keep and

bear arms. N.Y. Times, July 29, 1987, p. Al. The

Framers’ ultimate decision not to adopt the Sherman

proposal indicates that they felt it was inadequate.

As adopted, the Second Amendment was devoid of any

language that would allow Congress to disarm law-

abiding persons. It clearly expresses the idea that a

well regulated militia is composed of the armed populace.

The Second Amendment intended “for Americans of the

late eighteenth century to possess arms for their own

personal defense, for the defense of their states and

their nation, and for the purpose of keeping their rulers

sensitive to the rights of the people.” Shalhope, The

Ideological Origins of the Second Amendment, 69 J. Am.

History 599, 614 (1982). See also Levinson, The Embar-

rassing Second Amendment, 99 Yale L. J. 637 (1989):

Hardy, The Second Amendment and the Historiography

of the Bill of Rights, 4 J. Law & Politics 1 (1987) ; Lund,

The Second Amendment, Political Liberty, and the Right

to Self-Preservation, 39 Ala. L. Rev. 103 (1987); S.

12

rook, THAT Every MAN BE ARMED 76 (Univ.

42 Press 1984); Malcolm, The Right of the People

to Keep and Bear Arms: The Common Law Tradition,

10 Hastings Const. L.Q. 287 (1983) ; Dowlut, The Right

to Arms: Does the Constiturion or the Predilection of

Jud ign?, 36 Okl. L. Rev. 65 (1983) ; Sprecher, The

Lost ment, 51 Am. Bar Assn. J. 554 & 665 (1965)

(2 parts). The Addendum contains a list of scholarly

literature on the Second Amendment.

G. The First Federal Militia Act

The federal Militia Act of May 8, 1792 required every

“free able bodied white male citizen” to provide himself

with a good musket or firelock ....” In House debate,

Rep. Parker objected that this would be impractical for

poor persons, who should thus be armed at federal ex-

pense. 2 ANNALS OF CONGRESS 1804 (Dec. 16, 1790).

Rep. Sherman argued that “the people of America would

never consent to be deprived of the privilege of carrying

arms.” Id. at 1805. He explained:

What relates to arming and disciplining means

nothing more than a general regulation in respect

to the arms and accoutrements. There are so few

freemen in the United States who are not able to

provide themselves with arms and accoutrements,

that any provision on the part of the United States

is unnecessary and improper. He had no doubt that

the people, if left to themselves, would provide such

arms as are necesary, without inconvenience or com-

plaint; but if they are furnished by the United

States, the public arsenals would soon be exhausted

„ Id. at 1806.

The ultimate objection to a government-armed popu-

lace was expressed by Rep. Wadsworth: “Is there a man

in this House who would wish to see so large a propor-

tion of the community, perhaps one-third, armed by the

United States, and liable to be disarmed by them?” Id.

at 1809.

13

Rep. Fitzsimons moved to strike the words “provide

himself” and amend the bill to read that every citizen

“shall be provided” with arms. Madison and others ob-

jected that this “would leave it optional with the States,

or individuals, whether the militia shall be armed or

not.” “This motion was lost by a great majority.” Id.

at 1809. Thus, the first Congress to pass legislation

under the Militia Clause, saw the militia as the body

of the citizens, who kept their own arms.

II. APPLICATION OF THE TEXT AND FRAMERS’

INTENT TO THE STATUTORY SCHEME

According to the text of the Constitution and Bill of

Rights as amplified by the intent of the framers, the

following factors are associated with the term “militia”.

1. Consists of “the people,” i.e., all able bodied per-

sons capable of bearing arms.

2. Its members are civilians primarily.

3. They provide their own arms.

4. They privately own these arms.

5. They keep these arms in their homes.

6. Their keeping and bearing of arms is not lim-

ited to actual militia service.

7. Its fedeval function is to execute the laws, sup-

press insurrections, and repel invasions.

By contrast, the following are characteristics of a

standing army, including a select militia:

1. Consists of a distinct and select group, full or

part time.

It is a permanent military establishment.

The federal government provides the arms.

> 9

The federal government owns the arms.

“~

ww’

*

The arms are secured in armories and are sub-

ject to federal recall.

14

6. The arms are borne only in professional military

training and service.

7. Its function is war.

10 U.S.C. Sec. 311 provides that “the militia of the

United States consists of all able-bodied males” ages 17

through 44, including the “organized militia” (National

Guard and Naval Militia) and “unorganized milita“

(all others). The following further definitions are pro-

vided in 10 U.S.C. See. 101:

(9) “National Guard” means the Army National

Guard and the Air National Guard.

(10) “Army National Guard’ means that part of

the organized militia of the several States

active and inactive, that-

(A) is a land force;

B is trained, and has its officers appointed,

under the sixteenth clause of section 8,

article I, of the Constitution ;

C) is organized, armed, and equipped wholly

or partly at Federal expense; and

Dis federally recognized.

(11) “Army National Guard of the United States”

means the reserve component of the Army all

ef whose members are members of the Army

National Guard.

Finally, 10 U.S.C. See. 672 b and d provides as to

the Army National Guard of the United States that

members or units “may not be ordered to active duty

under this subsection without the consent of the gov-

nor of the State“ involved. Recently adopted Sec.

672(f) limits the consent required, leading to the pres-

ent controversy. However, if the Guard is a component

of the armed forces, then the governor may not object

to its being trained abroad; only if the Guard is part

15

of the militia as constitutionally defined may the gov-

ernor object.

In recognizing the fundamental distinction between the

army and the militia, the Constitution does not antici-

pate that the organized militia will be a reserve com-

ponent of the Army. Although the statute may declare

the National Guard to be the organized militia of the

several states, that does not make it so under the Con-

stitution, any more than would a statute that declared

soldiers under active duty to be the militia. Further,

the statute declares the Army National Guard of the

United States to be a reserve component of the Army,

clearly distinguishing it from the constitutional militia.

When the National Guard is not on active duty as part

of the Army, it ostensibly has a hybrid status as a state

militia. However, its full-time status as a reserve com-

ponent of the Army, and its strong dependence on the

federal government, make it far more akin to a select

militia which is really part of the Army, than the con-

stitutional militia of the respective states envisioned by

the framers. The historical development of the militia

and the Guard exhibits a consistent parting of the ways

between the two.

The only detailed opinion by the U.S. Supreme Court on

the nature of the militia and the Second Amendment,

United States v. Miller, 307 U.S. 174 (1989), does not

even mention the National Guard. Miller concluded:

The signification attributed to the term Militia

appears from the debates in the Convention, the his-

tory and legislation of the Colonies and States, and

*

This is not the only area in wh h the Instituto requires a

distinction between the armed forces and the militia Phe armed

forces may engage in war but may not be called out te enforce the

laws, a function reserved to the militia under Art tec 8 Eg

18 U.S.C. See. 1385 punishes “Whoever willtull des al part

of the Army or the Air Foree i posse comitatus : therwiee to

execute the laws

Recent scholarship further contrasts the National Guard

from the militia as originally intended. The Right to

Keep and Bear Arms: Report of the Subcommittee on

the Constitution, Senate Judiciary Committee, 97th Cong.,

2d Sess. at 7 (1982) states:

In the Militia Act of 1792, the second Congress

defined “militia of the United States” to include

almost every free adult male in the United States.

. . . This statute, incidentally remained in effect

into the early years of the present century as a legal

requirement of gun ownership for most of the popu-

lation of the United States. There can be little

doubt from this that when the

people spoke of a “militia”, they had reference

the traditional concept of the entire populace capable

of bearing arms, and not to any formal group such

as what is today called the National Guard.

From this militia, appropriate measures might

create a “well regulated militia” of individuals

trained in their duties and responsibilities as citizens

and owners of firearms.

After the Civil War, the militia as envisioned in the

Constitution came to be relied upon less and less. Wiener,

The Militia Clause of the Constitution, 54 Har. L. Rev.

181, 191 (1940) states: “The militia contemplated by the

5 Maryland „ United States, 381 U.S. 41, 46 (1965) held: “The

National Guard is the ‘modern Militia reserved to the States

In view of Miller and the federal statutory provisions, it is clear

that, to the degree Maryland goes beyond holding that the National

Guard is the “organized militia — Which is only as far as the Court

needed to go to decide the case—the statement is dictum.

17

Act of 1792, that is, the whole body of the people, vir-

tually ceased to exist, and the States relied more and more

upon select bodies of men . . . who became known as Na-

tional Guards. The Guards devoted itself . with dis-

tressing regularity, to strike duty. Een so, the

Guard was not part of the federal Army at that time,

defined by state law as a part of the general

zt

2

F

*

5

nent of the Army.

AMERICAN Soctery 245 (1972) states:

The Dick Act almost completely negated the orig-

inal purpose of the militia, for the Founding Fathers

saw the militia as a liberal agency that would act in

M. Derthick, Tur National Guarp wm Patres 16-17 (1965)

states

Both observers in the 1880's and subsequent students have

identified the labor riots of 1877 as the cause of the Guard's

sudden growth . Development of the Guard began and pro-

ceeded fastest in the populous, industrial states of the Nor*h.

The Guards received substantial private funds from wealthy

businessmen... . Officers of the Guard in all of the states appear

to have been business and professional men. representative of

the “better classes.”

Derthick further notes that in the years after 1920, “the Guard

served the interests of business in conflicts with labor. It saw

frequent service in strikes . . It was attacked as the private army

of big business.” Id. at 51-52. This may explain the disuse of the

people at large as militia.

* State v. Wagener, NNW. 424, 425 Minn 1898) states: “Under

our Military Code, the active militia or national guard come

from the body of the militia of the State. Accord, State „.

Greyeton, 163 S.W.2d 335, 337 (Me. 1942) (“the term ‘militia’ was

not used as restricted to the National Guard“ but includes “every

able-bodied citizen

Current state constitutional and statutory provisions relating to

the militia are listed in the Addendum to this brief.

18

defense of individual and local liberty against the

power of the Federal Government. The Founding

Fathers, in fact, reflecting their deep suspicion of

standing armies, went to great lengths to insure

that the Federal Government would not have a

monopoly on violence. On an individual level, they

guaranteed citizens the right to bear arms; on the

organized level, they encouraged the development of

state militia units in order to provide a counter-

power to the U.S. Army.

The Act of June 15, 1933, 48 Stat. 153, 155 created the

National Guard of the United States as a reserve compo-

nent of the U.S. Army. This enactment was pursuant to

the power to “raise and support armies,” not the Militia

Clause. H.R. Rpt. No. 141, 78rd Cong., Ist Sess. at 2-5

(1933). As stated in The Right to Keep and Bear Arms:

Report of the Subcommittee on the Constitution, supra at

11:

The “militia” itself referred to a concept of a uni-

versally armed people, not to any specifically orga-

nized unit. When the framers deferred to the equi-

valent of our National Guard, they uniformly used

the term “select militia” and distinguished this from

“militia”. Indeed, the debates over the Constitution

constantly referred to organized militia units as a

threat to freedom comparable to ‘hat of a standing

army and stressed that such organized units did not

constitute, and indeed were philosophically opposed

to, the concept of a militia.

That the National Guard is not the “Militia” re-

ferred to in the second amendment is even clearer

today. Congress has organized the National Guard

under its power to “raise and support armies” and

not its power to “Provide for organizing, arming

and disciplining the Militia”. This Congress chose

to do in the interests of organizing reserve military

units which were not limited in deployment by the

strictures of our power over the constitutional mili-

tia, which can be called forth only “to execute the

laws of the Union, suppress insurrections and repel

19

invasions.” The modern National Guard was spe-

cifically intended to avoid status as the constitu-

tional militia, a distinct:on recognized by 10 U.S.C.

Section 311(a).*

Sinee the Army National Guard of the United States

is a component of the Army, the states have no authority

over it whatever, and the consent of a state governor for

training exercises abroad is not constitutionally required.

Consequently, Art. I, Section 8, Cl. 16, which reserves to

the states (without exception) “the authority of training

the militia” is irrelevant here.

Both federal and state statutes declare that the very

same force which is a component of the Army, nonetheless

constitutes the organized militia of the states. However.

the training of Guard units abroad has been undertaken

under the Army and Necessary and Proper clauses, not

under clause 16 which provides that Congress may govern

such part of the militia “as may be employed in the serv-

ice of the United States.” Moreover, the Constitution

distinguishes the Army from the Militia, and does not

anticipate that they may be one and the same. The char-

acteristics of the Guard as part of the Army clearly pre-

dominate over its characteristics as part of the militia of

the respective states. Taken as a whole, the National

Guard is not the constitutional militia as intended by the

E. Colby and J. Glass, The Legal Status of the National Guard

29 Va. L. Rev. 839, 840 (1943) states:

A separation of the National Guard from the militia idea is

the first and most necessary step. The confusion between these

— 9 “po on much error. . By [1933], although

g ® National Guard, there was, practically

speaking, no militia.

The article concluded “that the National Guardsmen are actually

federal troops in every sense of the word.” Id. at 852.

20

framers.’ Consequently, the Militia Clause has no applica-

tion here.

CONCLUSION

The Court should affirm the decision of the Court of

Appeals, but on such grounds as more precisely identifies

the constitutional status of the National Guard as a com-

ponent of the U.S. Army and not the Militia, which con-

siste of the people at large.

Respectfully submitted,

STEPHEN P. HALBROOK *

Suite B-3

10605 Judicial Drive

Fairfax, VA 22030-5165

(708) 385-8610

ROBERT DOWLUT

FIREARMS CIVIL RIGHTS

LEGAL DEFENSE FUND

1230 16th Street, N.W.

Washington, D.C. 20036

(202) 828-6345

Counsel for Amicus Curiae

* Counsel of Record

o During both world wars, when the National Guard units were

mobilized, the states had to rely on self-armed citizens and to

organize their own state protective forces for defense from invasion

and against sabotage, and to keep order. F. g., M. Schlegel, VmrcINIA

ON GUARD: CIVILIAN DEFENSE AND THE STATE MILITIA IN THE SECOND

Wortp War (1949); U.S. Home DEFENSE Forces Stupy at 58

(Office of Sec. of Defense, 1981); Dowlut & Knoop, State Constitu-

tions and the Right to Keep and Bear Arms, 7 Okl. City Univ. L.

Rev. 177, 197, 233-35 (1982). The organization of state defense

forces for militia needs has been the subject of proposed legislation.

E.g., H.R. 2581 (Traficant, June 2, 1987); H.R. 3068 (Skelton,

July 30, 1987).

APPENDICES

‘la

APPENDIX A

LITERATURE ON RIGHT TO BEAR ARMS

Levinson, The Embarrassing Second Amendment, 99

Yale L.J. 635 (1989)

Hardy, The Second Amendment and the Historiog-

raphy Of The Pill Of Rights, 4 Jour. of Law & Politics 1

(1987)

Hardy, Armed Citizens, Citizen Armies: Toward A

Jurisprudence Of The Second Amendment, 9 Harv. Jour.

of Law & Pub. Policy 559 (1986)

Halbrook, What The Framers Intended: A Linguistic

Analysis Of The Right To “Bear Arms,” 49 Law &

Contemp. Problems 151 (1986)

Shalhope, The Armed Citizen In The Early Republic,

49 Law & Contemp. Problems 125 (1986)

Halbrook, The Right To Bear Arms In The First State

Bills Of Rights: Pennsylvania, North Carolina, Ver-

mont, And Massachusetts, 10 Vermont L. Rev. 255

(1985)

S8. Halbrook, THAT EveRY MAN Be ARMED: THE Evo-

LUTION OF A CONSTITUTIONAL RIGHT (Univ. of N. Mex.

Press 1984)

Kates, Handgun Prohibition and the Original Meaning

of the Second Amendment, 82 Mich. L. Rev. 204 (1983)

Malcolm, The Right Of The People To Keep And Bear

Arms: The Common Law Tradition, 10 Hasting Const.

L. Q. 285 (1983)

Dowlut, The Right To Arms: Does The Constitution

Or The Predilection Of Judges Reign?, 36 Okl. L. Rev.

65 (1983)

The Right To Keep And Bear Arms, Report of Sub-

com. on Constitution of Senate Judiciary Comm. 97th

Cong. 2d Sess. (Feb. 1982) . }

Shalhope, The Ideological Origins Of The Second

Amendment, 69 Jour. Am. History 599 (1982)

Caplan, The Right Of The Individual To Bear Arms:

A Recent Judicial Trend, 1982 Detroit Col. L. Rev. 789

Halbrook, To Keep And Bear Their Private Arms:

The Adoption Of The Second Amendment, 1787-1791, 10

N. Ky. L. Rev. 13 (1982)

Gardiner, To Preserve Liberty—A Look At The Right

To Keep And Bear Arms, 10 N. Ky. L. Rev. 63 (1982)

Halbrook, The Jurisprudence Of The Second And

Fourteenth Amendments, 4 Geo. Mason U. L. Rev. 1

(1981)

Cantrell, The Right To Bear Arms, 53 Wis. Bar Bull.

21 (Oct. 1980)

Caplan, Handgun Control: Constitutional Or Uncon-

stitutional?, 10 N.C. Central L. J. 53 (1978)

Caplan, Restoring The Balance: The Second Amend-

ment Revisited, 5 Fordham Urban LJ. 31 (1976)

Whisker, Historical Development And Subsequent

Erosion Of The Right To Keep And Bear Arms, 78

W.Va. L. Rev. 171 (1976)

Weiss, A Reply To Advocates Of Gun Control Law,

52 Jour. Urban Law 577 (1974)

Hardy & Stompoly, Of Arms And The Law, 51 Chi.-

Kent L. Rev. 62 (1974)

McClure, Firearms And Federalism, 7 Idaho L. Rev.

197 (1970)

Levine & Saxe, The Second Amendment: The Right

To Bear Arms, 7 Houston L. Rev. 1 (1969)

Olds, The Second Amendment And The Right To Keep

And Bear Arms, 46 Mich. St. Bar J. 15 (Oct. 1967)

Comment, The Right To Keep And Bear Arms; A Nec-

essary Consti‘utional Guarantee Or An Outmoded Pro-

vision Of The Bill of Rights?, 31 Albany L. Rev. 74

(1967)

Sprecher, The Lost Amendment, 51 Am. Bar Assn. J.

554 & 665 (2 parts) (1965) =

Hays, The Right To Bear Arms, A Study In Judicial

Misinterpretation, 2 Wm. & Mary L. Rev. 381 (1960)

Alabama

Delaware

District of

Columbia

Florida

Georgia

Hawaii

Idaho

Illinois

1 A U 1

3a

APPENDIX B

STATE MILITIA PROVISIONS

STATE

CONSTITUTION

Const. of 1875 Art. 12

§ 1 (const. of 1901

Art. 15) *(LP)

nothing

Const. (from stat.

, 1 Article 16

1

Const. of 1874

Article 1151

Const. of 1879 as

amended

Article 8 § 1 (LP)

Const. of 1876

Art. 17 §1

nothing

nothiny

nothing

Const. Article 10 § 2

Const. Art. 3 § 1191

(Gen. Assem. )

nothing :

Const. Art. 14 § 1

Const. of 1970

Art. 12 §1

STATUTES

Alabama Code 1975

§ 31-2-2

Alaska Statutes 1978

Title 26

§ 2605.010

Arizona Rev. Statutes

Ann. 1956

Title 26 Article 2

§ 26-121

Arkansas Stat. Ann.

1947

511-102

West's Cal. Code Ann.

1955

§ 121-122

nothing

Conn. Gen. Stat.

Ann. (1975)

West’s Fla. Stat. Ann.

1975

Title 16 ch. 250

§ 250-02

Official Code of Ga.

Ann. 1971

§ 38-2-3

Hawaii Rev. Statutes

1976

Title 10 ch. 121

§ 121-1

Idaho Code

§ 46-102

Smith-Hurd III. Ann.

Stat. (1953)

Ch. 29 Art. 1

§1

oa ss

Indi: na

lowa

Kansas

Kentucky

Louisiana

Maine

Maryland

Massachusetts

Michigan

Minnesota

Mississippi

Missouri

Montana

Nebraska

Nevada

4a

Const. Art. 12 § 1

Const. of 1857

Art. 681

Const. Art. 8 § 1

Const. § 219

nothing

Const. Art. 7 § 4

nothing

nothing

Const. of 1963 Art. 3

§ 4 (*LP)

Const. of 1974 Art. 13

§1(*LP)

Const. of 1963 Art. 9

§ 214

Const. of 1945 Art. 3

§ 46 (*Gen.

Assem. )

Const. Art. 6 § 13

(“military force

shall consist of all

able bodied citizens

of state except

those exempt by

law“)

Const. Art. 1461

LP)

Const. Art. 12 §1

(*LP)

Burns Ind. Stat. Ann.

Title 10 Art. 3 **

nothing

nothing

Kansas Stat. Ann. 1976

Ch. 48 Art. 1

§ 48-101

Kentucky Stat. Ann.

1980

Title 5 Ch. 37

§ 37.170

West’s La. Rev. Stat.

Maine Rev. Stat. Ann.

Title 37-A Ch. 9

§ 37-A-251

Ann. Code of Md.

Art. 65 § 1

Mass. Gen. Lews Ann.

Title 5 Ch. 33

32

Mich. Compiled Laws

Ann.

§ 32.1

Minnesota Stat. Ann.

§ 190.06

Miss. Code Ann. 1972

Chapter 5

§ 33-5-1

Vernon’s Ann. Mo. Stat.

1969

Title 5 ch. 41

§ 41.050

Mont. Code Ann.

Title 10 Ch. 1 **

nothing

Rev. Stats. of Neb.

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Ohio

Oklahoma

Oregon

Pennsylvania

Rhode Island

South Carolina

South Dakota

Tennessee

5a

Const. Art. 24

nothing

Const. of 1947 Art. 5

931101)

Const. Art. 18 § 1

Const. Art. 12 § 1

nothing

Const. Art. 11 § 16

Const. Art. 9 § 1

Const. Art. 5 § 40

(*LP)

Const. Art. 10 § 1

(*LP)

nothing

nothing

Const. Art. 13 §1

Const. Art. 15 §1

Const. Art. 4 § 1 (‘all

male citizens shall

be subject to

performance of

military duty as

prescribed by law

N. Hamp. Rev. Stat.

Ann. (1977)

Title 8 Ch. 110

§ 110-A:1

N.J. Stat. Ann. (1968)

§ 838A :1-2

N.Mex. Rev. Stat.

(1978)

§ 20-2-2

McKinney’s Con. Laws

of N.Y. Ann.

Book 35

Art. 1§ 2

General Stat. of N.C.

(1981)

Ch. 127-A

§ 127A-1

N. Dakota Century Code

Ann. 1972

§ 37-02-01

Baldwin’s Ohio Rev.

Code Ann.

Title 59 ch. 5923

§ 5923.01

Oklahoma Stat. Ann.

Title 44 Art. 8

§ 41

Oregon Rev. Stat.

(1981)

§ 396.105

Purdon’s Penn. Stat.

Ann. 1969

Title 51 Art. 2

§ 1-201

General Laws of R. I.

Title 30 Ch. 1

§ 30-1-2

Code of Laws of

S. Carolina 1976

§ 25-1-60

S. Dakota Codified Laws

§ 33-2-2

Tenn. Code Ann. 1980

§ 58-1-104

Texas

Utah

Vermont

Virginia

Washington

West Virginia

Wisconsin

Wyoming

6a

Const. of 1876 Art. 16 Vernon's Texas Civil

§ 46 (*LP)

Const. Art. 15 § 1

Const. Art. 15 13

nothing

Const. Art. 10 § 1

nothing

Const. Art. 4 § 28

(*LP)

Const. Art. 17 § 1

Stat. Ann. 1962

Title 94 Art. 5766

Utah Code Ann. 1981 ed.

§ 39-1-1

nothing

Code of Virginia 1981

§ 38.04.030

West Va. Code 151-13-1

**

nothing 7

West's Wisc. Stat. Ann.

9192-102

* LP constitutional provision for legislature or general assembly

to determine organization of militia.

Code section numbers followed by “nothing”—militia section

of code cortained no specifics on organization.

— —— ar | ek Ae * os