# Amicus Curiae Brief — Perpich v. Department of Defense > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0681%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 496 U.S. 334 ## Text 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. ! i 5 : : 2 f 1 i 7 5 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0681%3A11. Public record. Not legal advice.