Opposition Brief — Warin v. United States

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In the Supreme Court of the United States

OcToBerR TERM, 1975

No. 75-1399

FRANCIS J. WARIN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A2-A11)

is reported at 530 F.2d 103. The opinion of the district

court (Pet. App. Al2-A18) is not reported.

JURISDICTION

The judgment of the court of appeals (Pet. App. '

Al) was entered on February 4, 1976. On February 23, b

1976, Mr. Justice Stewart extended the time for filing :

a petition for a writ of certiorari to and including :

April 5, 1976. The petition was filed on April 2, 1976.

The jurisdiction of this Court is invoked under 28 :

U.S.C. 1254(1). :

CONSTITUTIONAL PROVISION AND STATUTE

INVOLVED

The Second Amendment provides:

(1) :

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A well regulated Militia, being necessary to the

security of a free State, the right of the people

to keep and bear Arms, shall not be infringed.

26 U.S.C. 5861(d) provides:

It shall be unlawful for any person—

* * * *© *

(d) to receive or possess a firearm which is

not registered to him in the National Firearms

registration and Transfer Record * * *.

QUESTIONS PRESENTED

1. Whether petitioner’s prosecution for possession

of an unregistered machine gun violated the Second

Amendment. :

2. Whether petitioner, who was charged only with

possession of an unregistered machine gun and has not

sought to become licensed as a manufacturer, can

contest the validity of provisions regulating the manu-

facture of machine guns.

STATEMENT

After a jury-waived trial in the United States

District Court for the Northern District of Ohio, peti-

tioner was convicted of possessing an _ unregistered

ftrearm (a machine gun), in violation of 26 U.S.C.

5861(d). He was sentenced to three years’ probation.

The court of appeals affirmed.

The trial was based largely upon stipulated facts

(Pet. App. A3). Petitioner wilfully and knowingly pos-

sessed a submachine gun 21 inches long with a barrel

length of seven and one-half inches. This firearm had

not been registered to him in the National Firearms

Registration and Transfer Record. Petitioner made the

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weapon. The parties agreed that submachine guns are

used by the armed forces of the country and that

“firearms of this general type, that is, submachine 4

guns, do bear some relationship, some _ reasonable

relationship, to the preservation or efficiency of the .

military forces” (Pet. App. A3). :

ARGUMENT

1. Petitioner’s basic contention is that Section

5861(d), as applied to his possession of a submachine

gun, violates a personal right to bear arms vested in

him by the Second Amendment. It is settled, however,

that the Second Amendment does not establish an un-

qualified personal right to bear all kinds of arms.

United States v. Miller, 307 U.S. 174 (prosecution under

the National Firearms Act of 1934, 48 Stat. 1236, for

possession of a sawed-off shotgun); Cases v. United

SEDGE GLARE

States, 131 F.2d 916 (C.A. 1), certiorari denied sub nom. F

Velazquez v. United States, 319 U.S. 770. '

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In Miller the Court held that, absent any indication Hy

that possession of a sawed-off shotgun would contribute :

to the efficacy of the state militia, “we cannot say

that the Second Amendment guarantees the right to

keep and bear such an instrument” (307 U.S. at 178).!

EEL TRNAS IATA se

eas

‘Petitioner makes the bald assertion that citizens of Ohio who

might be called into militia service would be expected to furnish

their own weaponry (Pet. 10). Given the complexity of current

military hardware and the sophistication of contemporary warfare,

it is inconceivable that a state militia would be sent to battle Hi

armed only with “home grown guns.” No provision of Ohio law ,

requires its citizens to maintain arms. Indeed. Ohio Revised Code

§§2923.17 and 2923.11 (1953) provide that only members of the

active militia (which does not include petitioner) are exempt from

other provisions of state law forbidding the possession of machine

guns.

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The Second Amendment, as the court below noted.

establishes “a _ collective rather than an_ individual

right” (Pet. App. A6). It guarantees the “right of the

State to maintain a militia and not * * * the individual's

right to bear arms.” Stevens v. United States, 440

F.2d 144, 149 (C.A. 6). See also United States v.

Johnson, 497 F.2d 548 (C.A. 4): United States v. Tot, 4

131 F.2d 261 (C.A. 3), reversed on other grounds,

319 U.S. 463. No court of appeals has struck down

any federal firearms statute on Second Amendment

grounds; that being so, there is no need for review by

this Court.?

2. Petitioner also contends (Pet. 13-15) that the lower

courts improperly declined to address his arguments

that certain statutes and regulations pertaining to the

manufacture of machine guns (see 26 U.S.C. 5822:

27 C.F.R. 179.62) violated the Due Process Clause of

the Fifth Amendment. The court below concluded, properly

we submit, that petitioner could not raise these issues

because he was ot charged with the illegal manufacture

of the firearm avolved, but rather with possession of

ali unregisterea . capon (Pet. App. AI0-AI1).

"There is no conflict among the circuits as to the interpreta-

tion of the Court’s holding in Miller. Cody v. United States.

460 F.2d 34 (C.A. 8). certiorari denied, 409 U.S. 1010. and United .

States v. Decker, 446 F.2d 164 (C.A. 8). involved the making of |

false statements pursuant to a firearm purchase and the failure of

a gun dealer to maintain required records. These decisions held |

only that such requirements did not affect the maintenance of an

effective militia: they do not conflict with the opinion below that

petitioner's possession of a single machine gun is not protected

by the Second Amendment.

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But even assuming that one charged only with a

possessory offense may contest the constitutionality of

manufacturing statutes and regulations, this would be

so only if the party seeking to challenge the provisions

in question had first sought to secure a license to

manufacture. Petitioner did not do so. Bourjois, Inc.

v. Chapman, 301 U.S. 183, 188; Independent Warehouses,

Inc. v. Scheele, 331 U.S. 70, 88. Cf. Aircraft and

Diesel Equipment Corp. v. Hirsch, 331 U.S. 752. The

cases cited by petitioner (Shuttlesworth v. Birmingham,

394 U.S. 147, 151; Freedman v. Maryland, 380 U.S.

51. 56) for the opposite proposition represent an exception

(based upon the special nature of First Amendment

interests) to the general rule requiring exhaustion of

administrative remedies. No similar exception has been

recognized by any court for Second Amendment claims.? :

‘Since the Second Amendment does not preclude taxation or

regulation of firearm possession (Sonzinsky v. United States,

300 U.S. 506), the Second Amendment does not create a right to

be free of a “chilling effect” that has been thought to justify

special treatment of First Amendment cases. Cf. United States v.

Powell, 423 U.S. 87, 92, in which the Court declined to apply

the special First Amendment void-for-vagueness doctrine to a

statute forbidding the mailing of certain weapons.

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CONCLUSION

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

RoBerT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

JEROME M. Feit,

RoBERT H. PLAXxICco,

Attorneys.

JUNE 1976.

DO/J-1976-06

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