Petition for Writ of Certiorari — Costerus v. Neal
Supreme Court brief2002
Ask Donna
What actually matters in this document.
Text
. Supreme Court, U.S.
| FILED
No. OF 42 7 JUN 27 2002
| GPR@8 OF THE eLaK
IN THE
Supreme Court of the United States
ALEC S. COSTERUS,
Petitioner
V.
JANE SWIFT, ET AL.,
Respondents
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the First Circuit
PETITION FOR WRIT OF CERTIORARI
Alec S. Costerus, pro se
1537 Sudbury Road
Concord, Massachusetts 01742
® 978 .318 . 9739
ee
Questions Presented for Review
1. WHETHER the Second Amendment to the US.
Constitution guarantees an individual right to keep
and bear arms?
2. WHETHER the Second Amendment is made
applicable to the several States through the
Fourteenth Amendment?
3. | WHETHER Massachusetts’ Statute, M.G.L. c. 140, §
131 (d), which provides for standardless discretion
to local Licensing Authorities when reviewing an
application for a License to Carry Firearms, violates
the Equal Protection Clause of the Fourteenth
Amendment?
4. WHETHER the local Licensing Authority’s after-the-
fact consideration of acts which when done were
innocent, as ground for denial of a license to carry
firearms, violates the Due Process provisions of the
Fourteenth Amendment?
Parties to the Proceeding
Petitioner Alec S. Costerus (hereinafter “Costerus”)
resides at 1537 Sudbury Road in Concord,
Massachusetts 01742-5826. Costerus has been an
accomplished competitive marksman for many years.
Respondent Jane Swift (hereinafter “Respondent
Swift”) is the Acting Governor of the Commonwealth of
Massachusetts, whose principal place of business is at the
State House located at 24 Beacon Street, Boston,
Massachusetts 02133. Respondent Swift became Acting
Governor on April 10, 2001, who is sued in her official
capacity as such.
Respondent Commonwealth of Massachusetts is a
state of the United States of America.
Respondents Swift and Commonwealth of
Massachusetts are collectively hereinafter referred to as
“Respondent State Officials.”
il
Table of Contents
Questions Presented for Review ................... i
Parties to the Proceeding .......................5. ii
Table of Contents ..............cccccccccccccee, lil
ee vi
Constitutional Provisions Cited ............... vi
Federal Statutes Cited ........................ Vi
SO Vii
ce kee diwaccdcs Vii
Other Authorities Cited ...................... xi
ES ee XXXii
Jurisdictional Statement ....................05. XXXii
United States District Court's Jurisdiction .... xxxii
United States Court of Appeals’ Jurisdiction . xxxiii
United States Supreme Court's Jurisdiction .. xxxiv
Filing Dates Establishing Timeliness of Appeal xxxiv
Appeal of Final Order or Judgment ......... XXXiV
Constitutional Provisions and Statutes Involved .. xxxv
Petition for Writ of Certiorari ................ ee
Statement of the Case ....................0000. 1
TN ances evcccccnccacecen 3
Reasons for Granting Writ of Certiorari ......... e)
I. Second Amendment .................... 5
Rg ee 13
iii
1. Second Amendment Made Applicable
to the States via Fourteenth
A ET eee ee eee 13
2. Second Amendment Secures an
Individual’s Right to Keep and Bear
eee er er Terre rT ee 16
B. United States v. Millér .............055 18
es Se NE 8 55.cdk ohne dan seneueeresnes 22
A. Adequacy of Post-Deprivation Remedy
OPT Tee Tee eee Tee rere 22
1. Adequacy of Remedy Inadequate . 22
2. Remedy for Post-Deprivation ..... 23
B. Gun Licenses as Property or Liberty
SNE 3s ucecesteeteweneeeuenuas 25
eo ETE TET ET ce ere rer eres 29
Ee See ere ee rey eee eee TT er Al
Judgement, United States District Court for the
District of Massachusetts, 00CV12156 MEL .... A2
Order, United States District Court, District of
Massachusetts, 00CV12156 MEL............. A114
Judgment in a Civil Case, United States District
Court, District of Massachusetts, 00CV12156 MEL
Pe Tey eT eer eee ee ee eee A 16
FS PTET TT ee eee ree Bl
Judgement, United States Court of Appeals for the
First Circuit, Case No. 01-1493 ............... B2
iv
DEES. 56sec asic eee ae Cl
Massachusetts General Laws, Chapter 140, § 131
(AE OeTR EER ES SED 4 INE ROT MOREE ENE Raa Ci
| ee een ears et he siete D1
Bibliography of Scholarly Research ........... D1
Table of Authorities
Constitutional Provisions Cited
U.S. Constitution, Fifth Amendment ... 1, 8, 10, 12, 27,
30
U.S. Constitution, Fourteenth Amendment . i, xxxiii, 1,
11, 12, 14, 15, 27, 29,30,D1,D3,D4
U.S. Constitution, Second Amendment . i, 1, 2, 8-12, 15-
22, 26, 27, 29
Federal Statutes Cited
yee | Pere er XXXiV
y Ets a bs Pen A Oice my ene a XXXiV
a ee aks 0h 4 OK 60 ee eee XXXili
Bee es. 0644800840008 ee XXXii
y gk Tae gs rrr re re Xxxii
y ph ee ok Pee eree eee ee XXxXii
y pit lee | eeereerr erry re XXXiV
gts SoD . err err ey rrr xxxiii, 2, 23, 24
GRU BA. BT) 56s vvice ener iscessvannes XXxil
vi
DE POE te Bae 6 Re a
FUP ahee OE ED ov cc eh eo cc tuenvedensdenes Xxxiii
5 U.S.C. § 552a (“Privacy Act of 1974") ......... XxXxiii
PEE SIND FAME 6 an WN Vc Sade vn en svseceees 18
State Statutes Cited
ok BY RS | ere pr re pr er ey r rerrr yy 23
fet Re REY | Pee T Te rer re Tere 1, 25, 28
itt ma a Fb: Peererrerrrrrere rr rs. 1, 2, 10, 25
EAs aa ©. BEE Sk OD os cbc cicevenseces i, 21, 23, 26
Ras ©. De ed ok so eked sek veer dees cebaces 28
ee Ge se ei ae isn eek es deeendaecueaeses 25
Military Code of IIlinois,
Act of May 28, 1879, Laws of 1879, 192 ......... 14
8, Fe PTT eer ee eee se Be
DR ere GO EE nv esa desvsconsarecvcseeses 25, 28
kV FT ee eeTereri re errr ee 26, 28
Cases Cited
Albright v. Oliver,
BIO US FIO FRO anon nse ce vncdcwcccccecevcns 15
Vii
Aymette v. State,
2 Humphreys (Tenn.) 154,158 ................ 19
Board of Regents of State Colleges v. Roth,
92 S.Ct. 2701, 408 U.S. 564, 33 L.Ed.2d 548 (1972)
PEP OCTET CET ERE FE OPT ITT T TOR ee. EF 15, 16, 27
Boddie v. Connecticut,
re Ge Oe ig TOD 6 0 680 bea eebeeeceseceurs 29
Bolling v. Sharpe,
ee We ie GPF Re £0 068 Fes eaweeeccdcéuess 16
Brown v. Wilson,
373 F.Supp. 1045, 1049 (W.D.Pa.1974) .......... 24
Bush v. Gore,
531 USS. SD aN Ws cacveeeusseusesuneenks 21
Emerson v. United States,
Case No. 01-8780, June 10, 2002, cert. denied. ... 8,10
Ex parte Milligan,
rgGit © 1) Be reErTrrererrrerTr rier rrey e 8
In re Rapier,
345 US. TID, TS1 CBRE) wo occ ccccsesccccccvveces 9
Jannetta v. Cole,
493 F.2d 1334, 1337 n. 5, 1338 (4" Cir. 1974) ..... 24
Johnson v. Eisentrager,
SOP OD, FES CRIS 6 vec swveccccesesccebevecrves 9
Vili
7:
q
:
:
:
:
Logan v. United States,
144 US. 263, 286-287 (1892) ...........0 0.0005, 18
Mabey v. Reagan,
937 F.2d 1036, 1045 (9" Cir. 1976) .............., 24
Manfredonia v. Barry,
401 F.Supp. 762, 767-768 (E.D.N.Y.1975) ........ 24
Monroe v. Pape,
365 U.S. 167, 172, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)
EES GEE EDS SENOUTES NEDSS OE EE 50 8a obits otha h 25
Moore vs. East Cleveland,
431 US 494, 502 (1976) ........ 0... cece cece ees 14
Needleman v. Bohlen,
386 F.Supp. 741 (D.Mass.1974) ..............., 24
O'Brien v. Galloway,
362 F.Supp. 901, 905 (D.Del.1973) .............. 24
Perry v. Sindermann,
408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)
NEVES RE Rae EAS CC EPo geen peda eRS Swe e Gnu cede 24
Planned Parenthood v. Casey,
ee Ae ORO ns 04-5 6.bp 0 0:0 Sa duensadeccewes 15
Poe v. Ullman Poe v. Ullman,
Pe ee OE ie sor'ben ks vkeenevdexenceal 14
ix
Presser v. Illinois,
116 U.S. 252, 265 (1886). ........ 2, 11, 13, 14, 16-18
Printz v. United States,
Case No. 95-1478, 521 U.S. 98, 117 S.Ct. 2365 (1997)
Lick Aen LAE WR ENON EUS T ee See Sd OK RECESS 7
Robertson v. Baldwin,
Re re 18
Rzeznik v, Chief of Police of Southampton,
374 Mass. 475, 373 N.E.2d 1128 (1978) .......... 23
Scott v. Sandford,
60 U.S. (19 Howard) 398, 417, 450 (1857) ....... 7,8
Shelburne v. Moyer,
16 Mass.App.Ct. 543, 453 N.E.2d 461 (1983) .. 2, 25-
27
Smith v. Losee,
485 F.2d 334, 338, 340 (10 Cir. 1973) ........... 24
Stanley v. Illinois,
eS RE ino ooh bea Oe earns es 16
United States v. Cruikshank,
Mik Gl > ee 16-18, 26
United States v. Emerson,
Or ie IE hone 5A aoe een eres 9,10, 27
United States v. Emerson,
99-10331, 5” 2 Eg ey eer Pre wre Nie 7e Ye 9
United States v. Miller,
26 F. Supp. 1002, 1003 (W.D. Ark. i err 18
United States v. Miller,
307 U.S. 174, 178 (1939). ...... 2,5, 7, 11, 18-21, D2
United States v. Verdugo-Urquidez,
oe A at | ree 7,13
Williams v. Day,
412 F.Supp. 336, 340 n.1 (E.D.Ark.1976)......... 24
Other Authorities Cited
Amar, Akhil Reed,
“Second Thoughts: What the Right to Bear Arms
Really Means,” The New Republic, p. 242, July 12,
Se ee dk aces ea Re ea D1
Amar, Akhil Reed,
“The Bill of Rights and the Fourteenth
Amendment,” 101 Yale L. J. 1131-1284, April 1992
PSA paw 7 ales wee ae Ow ee ee .D1
Amar, Akhil Reed,
“The Bill of Rights as a Constitution,” 100 Yale L. J. ‘
Se No cea rck e ee D1
Xl
ee ee
Ashcroft, John, U.S. Attorney General
Letter to James J. Baker, Executive Director,
National Rifle Association, May 17,2001 ........ 8
Costerus v. Argeo Paul Cellucci, et al.,
Judgment, U.S. Court of Appeals (1* Cir.), Case
No. 01-1493, March 29, 2002 ............... XXXi1V
Costerus v. Neal, et all.,
Memorandum and Order, U.S. District Court for
the District of Massachusetts, Civil Action No. 00-
12156-MEL, March 9, 2001, p. 8 (Lasker, J.) . . . xxxiv,
20
Costerus v. Wetherbee, et al.,
Defendant State Officials’ Motion to Dismiss, U.S.
District Court, Civil Action No. 00-12156-MEL,
POOPORNIOE DU BOs gov i nv vviccovdscdsbvuesenee 2
Costerus v. Wetherbee,
Findings of Fact and Conclusions of Law, Concord
District Court, Docket No. 0047-CV-0001, dated
DERCE DD, Bre COMO, J) os ev vv cee wee 26
Cottrol, Robert J., (ed.),
Gun Control and the Constitution: Sources and
Explorations on the Second Amendment, 3 vols.,
Garland Publishing, Inc., New York, N.Y., 1992,
and in single paperback vol., Garland Publishing,
ae. Oe ae See re GP D1
Xii
Cottrol, Robert J., with Diamond, Raymond T.,
“The Fifth Auxiliary Right,” 104 Yale L. J. 995-1026,
Be ye... ............. D1
Cottrol, Robert J.,
“Public Safety and the Right to Bear Arms,” in D.
Bodenhamer and J. Ely, After 200 Years: The Bill of
Rights in Modern America, Indiana Univ. Press,
Bloomington, Ind., 1993 ...............0000.. D1
Cottrol, Robert J.,
“The Second Amendment: Toward an Afro-
Americanist Reconsideration,” 80 Georgetown L. J.
ew... se... D1
Cottrol, Robert J.,
“Never Intended to be Applied to the White
Population’: Firearms Regulation and Racial
Disparity - The Redeemed South's Legacy to a
National Jurisprudence,” 70 Chi.-Kent L. Rev. 1307-.
IE ee D1
Denning, Brannon P. with Reynolds, Glenn Harlan,
“It Takes a Militia: A Communitarian Case for
Compulsory Arms Bearing,” 5 W. & M. Bill of
Wa ee, ..).......5............. D2
Denning, Brannon P.,
“Palladium of Liberty? Causes and Consequences
of the Federalization of State Militias in the
Twentieth Century,” 21 Okla. City U. L. R. 191-245,
EE D2
Xlil
| ele eee
Denning, Brannon P.,
“Professional Discourse, the Second Amendment
and the ‘Talking Head Constitutionalism’
Counterrevolution: A Review Essay,” 21 So. IIl. U.
A Oe. Sere ein ms tah te D2
Denning, Brannon P.,
“Can the Simple Cite Be Trusted? Lower Court
Interpretations of United States v. Miller and the
Second Amendment,” 26 Cumberland L. Rev. 961-
ee Pee ee eee ee rere ee ee re D2
Halbrook, Stephen P.,
A Right to Bear Arms: State and Federal Bills of Rights
and Constitutional Guarantees Greenwood Press,
Sy, VUOMION, COMM, THO ccs eiscesueciucss D2
Halbrook, Stephen P., |
Firearms Law Deskbook, Clark Boardman Callaghan,
Deerfield, Ill., 1995 and 1999 supp. ............ D2
Halbrook, Stephen P.,
That Every Man Be Armed: The Evolution of a
Constitutional Right, Univ. of New Mexico
Press/The Independent Institute, Oakland, Cal.,
1984, reprinted by The Independent Institute, 1991
sabe ees chs ad wae EE ee eee D2
Halbrook, Stephen P., with Kopel, David B.,
revised and reprinted in Cottrol, Gun Control and
the Constitution: Sources and Explorations on the
Second Amendment, pp. 360-374, “Tench Coxe and
the Right to Keep and Bear Arms, 1787-1823,” 7/2
XIV
W. & M. Bill of Rights J. 347-399, February 1999
Halbrook, Stephen P.,
“Congress Interprets the Second Amendment:
Declarations by a Co-Equal Branch on the
Individual Right to Keep and Bear Arms,” 62/3
Tenn. L. Rev. 597-641, Spring 1995 ............ D3
Halbrook, Stephen P.,
“Encroachments of the Crown on the Liberty of
the Subject: Pre-Revolutionary Origins of the
Second Amendment,” 15 U. of Dayton L. Rev. 91-
8 ee een reper nec anon: D3
Halbrook, Stephen P.,
“Firearms, the Fourth Amendment, and Air
Carrier Security,” 52/3 J. of Air Law & Comm. 585-
680, Southern Methodist Univ. School of Law, 1987
Halbrook, Stephen P.,
“Personal Security, Personal Liberty, and ‘The
Constitutional Right to Bear Arms’: Visions of the
Framers of the Fourteenth Amendment,” 5/2
Constit. L. J. 341-434, Seton Hall Law School,
amie: Lomeiaat Oe ee ET COT COE D3
Halbrook, Stephen P.,
“Rationing Firearms Purchases and the Right to
Keep Arms: Reflections on the Bill of Rights of
Virginia, West Virginia, and the United States,” 96
Vs FE: Mi PO DA BOO Soaks css ba vae vee ses D3
XV
Halbrook, Stephen P.,
“Second-Class Citizenship and the Second
Amendment in the District of Columbia,” 5/2 Geo.
Mason Univ. Civ. Rights L. ]. 105-178, Summer 1995
PPT eReT eee ee ne ree D4
Halbrook, Stephen P.,
“The Jurisprudence of the Second and Fourteenth
Amendment, Geo. Mason L. Rev. 1-69, 1981,
reprinted in part in The Right to Keep and Bear
Arms, Report of the Subcommittee on the
Constitution of the Senate Committee on the
Judiciary, 97" Cong., 2d Sess., pp. 68-82, February
|’ inn ere en rye ca MAA rr gae eee D4
Halbrook, Stephen P.,
“The Right of the People or the Power of the State:
Bearing Arms, Arming Militias, and the Second
Amendment,” 26/1 Valparaiso U. L. Rev. 131-207,
Rn errr ey err rs ere D4
Halbrook, Stephen P.,
“The Right to Bear Arms in Texas: The Intent of
the Framers of the Bill of Rights,” 41 Baylor L. Rev.
C29-GBB, P90D os SEGA D4
Halbrook, Stephen P.,
“The Right to Bear Arms in the First State Bills of
Rights: Pennsylvania, North Carolina, Vermont,
and Massachusetts,” 10 Vt. L. Rev. 255-320, 1985
XVi
Halbrook, Stephen P.,
“The Right to Keep and Bear Arms under the
Second and Fourteenth Amendments: The
Framers' Intent and Supreme Court
Jurisprudence,” 5/1 J. Firearms & Pub. Pol. 7-28,
PR on god eae Gn i's 6b 4 4a ode wo D4
Halbrook, Stephen P.,
“The Second Amendment as a Phenomenon of
Classical Political Philosophy” in Kates, Don B. ,
Jr., (ed.), Firearms and Violence, 1984 ........... D5
Halbrook, Stephen P.,
“To Keep and Bear Their Private Arms: The
Adoption of the Second Amendment, 1787-1791,”
10/13 No. Ky. L. Rev. 13-39 (1982), reprinted in 2 J.
EN SS Sn sn AG aie po S48 6 eh ae D5
Halbrook, Stephen P.,
“Tort Liability for the Manufacture, Sale and
Ownership of Handguns,” 6/2 Hamline L. Rev.
ang yc dic nook as WN SER ODORS D5
Halbrook, Stephen P.,
“What the Framers Intended: A Linguistic
Analysis of the Right to ‘Bear Arms’,” 49/1 Law &
Contemp. Prob. 151-162, Winter 1986........... D5
Hardy, David T. with Fields, William S.,
“The Militia and the Constitution: A Legal
pumety, 150 Mil. L. Rev.1,1992.............. D5
XVil
Hardy, David T. with Stompoly, John,
“Of Arms and the Law,” 51 Chi.-Kent L. Rev. 62-
es Lee eae an eat ANE Saar a D5
Hardy, David T.,
Origins and Development of the Second Amendment,
Blacksmith Corp., Chino Valley, Ariz.,1986.... D5
Hardy, David T.,
“Armed Citizens, Citizen Armies: Toward a
Jurisprudence of the Second Amendment,” 9
Harvard J. of L. & Pub. Pol. 559-638, 1986 ....... D5
Hardy, David T.,
“Firearms Ownership and Regulation: Tackling an
Old Problem with Renewed Vigor,” 20 W. & M. L.
ee ee or ee er rere D5
Hardy, David T.,
“Historical Bases of the Right to Keep and Bear
Arms,” The Right to Keep and Bear Arms, Report of
the Subcommittee on the Constitution of the
Senate Committee on the Judiciary, 97th Cong., 2d
Sess., pp. 45-67, February 1982 ............... D6
Hardy, David T.,
“Legal Restrictions of Firearms Ownership as an
Answer to Violent Crime: What Was the
Question?” 6 Hamline L. Rev. 391-408, 1983 ..... D6
Hardy, David T.,
“The Firearms Owners' Protection Act: A
XVili
Historical and Legal Perspective,” 17 Cumberland
hn ROD. TOO e BOE on vnc censuveccunucneees D6
Hardy, David T.,
“The Second Amendment and the Historiography
of the Bill of Rights,” 4 J. of L. & Pol. 1-62, 1987 . D6
Heath, J. Norman,
“Exposing the Second Amendment: Federal
Preemption of State Militia Legislation,” 79 U. Det.
PERCY 1. OD. TPC 66. M6 ks ba oe cae ee D6
Kates, Don B., Jr., (ed.),
Restricting Handguns: The Liberal Skeptics Speak Out,
North River Press, Inc., Croton-on-Hudson, N.Y.,
ROE Kick ees casaeie beeen D6
Kates, Don B., Jr., (ed.),
Why Handgun Bans Can't Work Second
Amendment Foundation, Bellevue, Wash., 1982
Kates, Don B., Jr., with Barnett, Randy E.,
“Under Fire: The New Consensus on the Second
Amendment,” 45/4 Emory L. J. 1139-1259, Fall 1996
6 64 We eae hoes eae Oe ee D6
Kates, Don B., Jr., with Kleck, Gary,
The Great American Gun Debate: Essays on Firearms
& Violence, Pacific Research Institute for Public
Policy, San Francisco, Cal., 1997 .............. D7
X1X
Kates, Don B., Jr., (ed.),
Firearms and Violence: Issues of Public Policy
Ballinger, Cambridge, Mass., 1984 ............ D7
Kates, Don B., Jr., (ed.),
Symposium: Gun Control, 49/1 L. & Contemp.
PUD. BBs ¢ TOE BOO ck b hee scusetee nes D7
Kates, Don B., Jr., (ed.),
“Firearms and Firearms Regulation: Old Premises,
New Research (A Symposium),” 5 L. & Pol. Quart.,
is POPPTTPReTeT Terr Terr yr ee D7
Kates, Don B., Jr., author,
“The Second Amendment: A Dialogue,” id. at 143-
BOD «0460 ovdewesieend ooh Gees baeeseeeeee ere D7
Kates, Don B., Jr.,
Guns, Murders, and the Constitution: A Realistic
Assessment of Gun Control, Pacific Research
Institute for Public Policy, San Francisco, Calif.,
ry ere ee Bere Pr re D7
Kates, Don B., Jr., with Lattimer, John K. and Boen, James
R.,
“Problematic Arguments for Banning Handguns,”
in Kates, Don B., Jr., and Kleck, Gary, The Great
American Gun Debate: Essays on Firearms & Violence,
Pacific Research Institute for Public Policy, San
Francisco, Cal., pp. 31-49, 1997 .......ssees00. D7
eee) weet
Kates, Don B., Jr., with Lattimer, John K., and Boen, James
R.,
“Sagecraft: Bias and Mendacity in The Public
Health Literature on Gun Usage,” in Kates, Don
B., Jr., and Kleck, Gary, The Great American Gun
Debate: Essays on Firearms & Violence, Pacific
Research Institute for Public Policy, San Francisco,
Ch, OU REO EEE oo cewrcccsepscabedewss D9
Kates, Don B., Jr., with Polsby, Daniel D.,
“Of Genocide and Disarmament,” 86/1 J. of Crim.
L. & Criminology 247-256, Fall 1995 ............ D7
Kates, Don B., Jr., with Schaffer, Henry E.; Latimer, John
K.; Murray, George B.; and Cassem, Edwin H.,
“Guns and Public Health: Epidemic of Violence or
Pandemic of Propaganda?” 62/3 Tenn. L. Rev. 513-
POO I BPO oo oF bse nk Cia tenvevenceseces D8
Kates, Don B., Jr.,
“Bigotry, Symbolism and Ideology in the Battle
over Gun Control,” 1992 Pub. Int'l L. Rev. 31-46,
Pere err Terre rT eT TT eTeeT re re re ee D8
Kates, Don B., Jr.,
“Gun Control: Separating Reality from
Symbolism,” 20 J. of Contemp. L. 353-379, 1994 .. D8
Kates, Don B., Jr.,
“Handgun Banning in Light of the Prohibition
Experience,” in Don B. Kates, Jr. (ed.), Firearms and
Violence, pp. 139-154, 1984 .......... cece eee. D8
XXi
Kates, Don B., Jr.,
“Handgun Prohibition and the Original Meaning
of the Second Amendment,” 82 Mich. L. Rev. 203-
ee NE Sak co heen ae sereeseoccurcuteeiiow D8
Kates, Don B., Jr.,
“Minimalist Interpretation of the Second
Amendment” in Hickok, E. (ed.), The Bill of Rights:
Original Meaning and Current Understanding, Univ.
of Virginia Press, Charlottesville, Va., 1991 .... D8
Kates, Don B., Jr.,
“On Genocide and Disarmament,” 86 J. of Crim. L.
& Criminology 247,1995 ....... 0... ccc cece ee D8
Kates, Don B., Jr.,
“Policy Lessons from Recent Gun Control
Research,” 49 L. & Contemp. Prob. 35-62, 1986... D8
Kates, Don B., Jr.,
“Reflections on the Relevancy of Gun Control,” 13
CP OU AEM EE oes ecccbuicnnctabeevs D8
Kates, Don B., Jr.,
“Some Remarks on the Prohibition of Handguns,”
re aS S| errr erer D9
Kates, Don B., Jr.,
“The Battle Over Gun Control,” 84 Pub. Int. 42,
1986, reprinted in 3 J. Firearms & Pub. Pol....... D9
Kates, Don B., Jr.,
“The Second Amendment and the Ideology of Self-
XXii
Protection,” 9 Constit. Comment. 87-104, February
MANGAN SeATh ENG GK KAN SKS SAM WS eSNG Ck Se ¥8% D9
Kates, Don B., Jr.,
“The Value of Civilian Handgun Possession as a
Deterrent to Crime or a Defense Against Crime,”
18 Amer. J. of Crim. L. 113-167,1991 ........... D9
Kleck, Gary with Bordua, David,
“The Assumptions of Gun Control,” in Kates, Don
B. (ed.) Firearms and Violence: Issues of Public Policy,
Ballinger, Cambridge, Mass., 1984, reprinted in
Library of Congress, Congressional Research
Service, Federal Regulation of Firearms: A Report
Prepared for the Use of the Committee on the Judiciary,
United States Senate, 97th Cong., 2d Sess.,
a ee eee D9
Kleck, Gary with Gertz, Marc,
“Armed Resistance to Crime: The Prevalence and
Nature of Self-Defense with a Gun,” 86/1 J. of
Crim. L. & Crim. 150-187, Fall 1995 ............ D9
Kleck, Gary with Patterson, E. Britt,
“The Impact of Gun Control and Gun Ownership
Levels on Violence Rates,” 9 J. of Quantit. Crim.
I ro le. So ae ee .D10
Kleck, Gary,
Point Blank: Guns and Violence in America, Aldine
de Gruyter, New York, 1991 ................ D 10
XXili
Kleck, Gary, with Kates, Don B., Jr.,
The Great American Gun Debate: Essays on Firearms
& Violence, Pacific Research Institute for Public
Policy, San Francisco, Cal., 1997 ............. D 10
Kleck, Gary,
“Crime Control Through the Private Use of
Armed Force,” 35/1 Soc. Prob. 1-21, February 1988
CLEA ERSGER ESS EEEDN DELANEY AES D 10
Kleck, Gary,
“Guns and Violence: An Interpretive Review of
the Field,” 1/1 Soc. Path. 12-47, January 1995 .. D10
Kleck, Gary,
“Media Bias: Gun Control, Assault Weapons, Cop-
Killer Bullets, the Goetz Case, and Other Alarms in
the Night,” in Kates, Don B., Jr., and Kleck, Gary,
The Great American Gun Debate: Essays on Firearms
& Violence, Pacific Research Institute for Public
Policy, San Francisco, Cal., pp. 54-92, 1997 . .. D10
Kleck, Gary,
“The Factual Foundation for Certain Key
Assumptions of Gun Control,” 5 L. & Pol. Quart.
a Mee RE TT eer r rarer re D 10
Kleck, Gary,
“The Frequency of Defensive Gun Use,” pp. 152-
191 and “Keeping, Carrying, and Shooting Guns
for Self Protection,” pp. 194-222, and “The Nature
of Defensive Gun Use and the Deterrence and
Displacement of Crime,” in Kates, Don B., Jr., and
XXiV
Kleck, Gary, The Great American Gun Debate: Essays
on Firearms & Violence, Pacific Research Institute
for Public Policy, San Francisco, Cal., pp. 223-268,
se OOS Ee Pree rrr ere | ae rea D 10
Kleck, Gary,
“The Relationship Between Gun Ownership Levels
and Rates of Violence in the United States,” in
Kates, Don B., Jr. (ed.), Firearms and Violence: Issues
of Public Policy, Ballinger, Cambridge, Mass., pp.
99-132, 1984, reprinted in Library of Congress,
Congressional Research Service, Federal .\egulation
of Firearms: A Report Prepared for the Use of the
Committee on the Judiciary, United States Senate, 97th
Cong., 2d Sess., Committee Print, 1982........ D11
Kopel, David B. with Blackman, Paul H.,
“Can Soldiers Be Peace Officers? The Waco
Disaster and the Militarization of American Law
Enforcement,” 30 Akron L. Rev. 619-659, 1997 .. D11
Kopel, David B. with Blackman, Paul H.,
“The Unwarranted Warrant: The Waco Search
Warrant and the Decline of the Fourth
Amendment,” 18/1 Hamline J. of L. & Pol. 1-51, Fall
oo iiare Be CES ic ek EE eek D11
Kopel, David B. with Cramer, Clayton E. and Hattrup,
Scott G.,
“A Tale of Three Cities: The Right to Keep and
Bear Arms in State Supreme Court Cases,” 68
Temple L. Rev. 1177-1240, 1995, reprinted in 8 J.
Firearms & Pub. Pol. 109-203, Fall 1996 ........ Dil
XXV
Kopel, David B. with Gardiner, Richard E.,
“The Sullivan Principles: Protecting the Second
Amendment from Civil Abuse,” 19 Seton Hall
LOGI. f. TROT EO WOOP viv sve ees denwbausee D11
Kopel, David B. with Little, Christopher C.,
“Communitarians, Neorepublicans, and Guns:
Assessing the Case for Firearms Prohibition,” 56/2
REA. 1. Rew, SO-SG, TIFT. vcs ck ncn eanune D12
Kopel, David B. with Olson, Joseph,
“Preventing a Reign of Terror: Civil Liberties
Implications of Terrorism Legislation,” 21 Okla.
City U. L. Rev. 247-347, Summer/Fall 1996 .... D12
Kopel, David B. with Reynolds, Glenn Harlan,
“Taking Federalism Seriously: Lopez and the
Partial-Birth Abortion Ban,” 30/1 Conn. L. Rev. 59-
GS rere reeset D12
Kopel, David B.,
Gun Control in Great Britain: Saving Lives or
Commivicting Liberty, T9982... 0 60s si ievasuwes D12
Kopel, David B.,
Guns: Who Should Have Them?, Prometheus Books,
oo ek ee | rr ore rer D12
Kopel, David B., -
The Samurai, the Mountie, and the Cowboy,
Prometheus Books, Buffalo, N.Y., 1992 ....... D12
Kopel, David B., with Blackman, Paul H.,
No More Wacos: What's Wrong with Federal Law
Enforcement and How to Fix It, Prometheus Books,
a ese ccc eens D 12
Kopel, David B.,
“Canadian Gun Control: Should the United States
Look North for a Solution to Its Firearms
Problem?” 5 Temple Int'l & Comp. L. J. 1-50, 1991
Kopel, David B.,
“Comprehensive Bibliography of the Second
Amendment in Law Reviews,” 11 J. Firearms &
EE eee D13
Kopel, David B.,
“It Isn't About Duck Hunting: The British Origins
of the Right to Arms,” 93 Mich. L. Rev. 1333-1362,
EE Se D13
Kopel, David B.,
“Japanese Gun Control,” 2 Asia Pac. L. Rev. 26-52,
eee D13
Kopel, David B.,
“Lethal Laws,” 15 N.Y. L. Sch. J. of Int'l & Comp. L.
EE Ee D13
Kopel, David B.,
“Peril or Protection? The Risks and Benefits of
Handgun Prohibition,” 12 St. Louis U. Pub. L. Rev.
ee ive vere eee D13
XXVIi
Kopel, David B.,
“Rational Basis Analysis of ‘Assault Weapon’
Prohibition,” 20 J. of Contemp. L. 381-417 (1994)
Kopel, David B.,
“The Ideology of Gun Ownership and Gun
Control in the United States,” 18 Quart. J. of Ideol.
Oy SE ROE 5k 05065 544 G NS Roe eee D 13
Kopel, David B.,
“The Second Amendment in the Nineteenth
Century,” 1998 Brig. Young U. L. Rev. 1359-1524,
SFE fats kchekerin vee eee D13
Kopel, David B.,
“Why Gun Waiting Periods Threaten Public
Safety,” 4/1 J. Firearms & Pub. Pol. 1-72, Summer
ee ree ere Pena anr rrr ts mre oshrr og D13
Levinson, Sanford,
“Democratic Politics and Gun Control,” 1
Recorpleuctign TSF, THRE oa cc csc vsecanvisavess D114
Levinson, Sanford,
“Is the Second Amendment Finally Becoming
Recognized as Part of the Constitution? Voices
from the Courts,” Brig. Young U. L. Rev. 127, 1998D
REO Tee er ee er eee
Levinson, Sanford,
“The Embarrassing Second Amendment,” 99 Yale
L. J. 637-659, December 1989, reprinted in Cottrol,
XXVIIi
Gun Control 137-159, reprinted in 3 J. Firearms &
tg SNe eg eee eee eer rer re rae D 14
Lund, Nelson,
“The Past and Future of the Individual's Right to
Arms,” George Mason University School of Law
Law and Economics Working Paper No. 95-11, GMU,
Arlington, Va., 1995, published in 31/1 Ga. L. Rev.
SOO PE NE i aC ea eaten se eens D14
Lund, Nelson,
“The Second Amendment, Politica! Liberty, and
the Right to Self-Preservation,” 39/1 Ala. L. Rev.
SR EE in eek eo eo dca ee eee D14
Malcolm, Joyce Lee,
Disarmed: The Loss of the Right to Bear Arms in
Restoration England, The Mary Ingraham Bunting
Institute of Radcliffe College, 1980 ........... D14
Malcolm, Joyce Lee,
Review, 54 Geo. Washington U. L. Rev. 582, 1986.
ee ee oe TT ee ee ut Vike hewe ek na eee
Malcolm, Joyce Lee,
To Keep and Bear Arms: The Origins of an Anglo-
American Right, Harvard Univ. Press, Cambridge,
eee ee eR eee errr rr see D 14
Malcolm, Joyce Lee,
“Gun Control and the Constitution: Sources and
Explorations of the Second Amendment,” 62/3
Tenn. L. Rev. 813-621, Spring, 1995 ........... D15
XX1X
Malcolm, Joyce Lee,
“The Right of the People to Keep and Bear Arms:
The Common Law Tradition,” 10 Hastings Constit.
L. Quart. 285-314, Winter, 1983, reprinted in Robert
J. Cottrol (ed.), Gun Control and the Constitution:
Sources and Explorations on the Second Amendment,
Garland Publishing, Inc., New York, N.Y., pp. 227-
SoG; NOPE 0.05 oka dee sake D15
Malcolm, Joyce Lee,
“The Role of the Militia in the Development of the
Englishman's Right to be Armed - Clarifying the
Legacy,” 5/1 J. Firearms & Pub. Pol., 139-151, 1993
<0 066 ba oh 896 bce se lege eka D15
Scalia, Antonin
A Matter of Interpretation: Federal Courts and the Law
3, 42-43 (Princeton Univ. Press, Princeton, N_J.,
frre rma nmr foe AN YS 7
Tribe, Laurence H.,
“The Second Amerdment and state sovereignty,”
1 American Constitutional Law, Foundation Press,
New York, N.Y., 3d ed., 894-903, 2000 ........ D15
van Alstyne, William,
“The Second Amendment and the Personal Right
to Arms,” 43/6 Duke L. J. 1236-1255, April 1994 -
Litho vese swan ee baee eee eee eee ers D15
Wetherbee v. Costerus,
Notice of Appeal, Middlesex Superior Court, Case
No. 00-02352, March 24, 2000. ...........0 ee eee 4
XXX
Wetherbee v. Costerus,
Memorandum of Decision and Order, Plaintiff's
Motion for Judgment on the Pleadings, Middlesex
Superior Court, Case No. 00-02352, May. 1, 2001
Eee Teer eee Reet Tee 4
Opinions Below
The appeals court judgment whose review is sought
is reproduced in the Appendix B. The district court
judgment and its Memorandum and Order are
reproduced in Appendix A.
Jurisdictional Statement
Jurisdiction is proper in this Court as follows:
United States District Court's Jurisdiction
1. This action was brought in the United States
District Court which has original jurisdiction of
all civil actions arising under the Constitution
or laws of the United States pursuant to 28
U.S.C. § 1331.
2. This action was brought in the United States
District Court which has original jurisdiction of
any civil action pursuant to 28 U.S.C. § 1343
(a)(1) for conspiring to interfere with and
deprive the civil rights as described in 42
U.S.C. § 1985 (3).
3. This action was brought in the United States
District Court which has original jurisdiction of
any civil action pursuant to 28 U.S.C. § 1343
(a)(3) for redress of the deprivation, under
color of State law or statute, of rights,
privileges, or immunities secured by the
Constitution of the United States.
XXXil
This action was brought in the United States
District Court which has jurisdiction over this
matter pursuant to 42 US.C. § 1983 for
deprivation of rights, privileges, and
immunities secured by the Second, Fourth,
Fifth, and Fourteenth Amendments of the
United States Constitution. Plaintiff asserts
that several Defendants deprived Plaintiff of
said rights, privileges, and immunities.
This action was brought in the United States
District Court which has jurisdiction over this
matter pursuant to 5 U.S.C. § 552a (hereinafter
the “Privacy Act of 1974") to enforce any
liability created under 5 U.S.C. § 552a (e)(3) for
deprivation of rights, privileges, and
immunities secured by the Privacy Act of 1974.
Plaintiff asserts that several Defendants
deprived Plaintiff of said rights, privileges, and
immunities.
United States Court of Appeals’ Jurisdiction
:
The United States Court of Appeals has
jurisdiction of appeals from all final decisions
of the district courts of the United States
pursuant to 28 U.S.C. § 1291.
The United States Court of Appeals for the
First Circuit has jurisdiction of appeals from all
final decisions of the United States District
Court for the District of Massachusetts.
XXXill
United States Supreme Court's Jurisdiction
The Supreme Court has jurisdiction to review cases
in the court of appeals by writ of certiorari pursuant to 28
U.S.C. § 1254 and Rule 10(a) and (c).
Filing Dates Establishing Timeliness of Appeal
The judgment sought to be reviewed was entered by
the U.S. District Court for the District of Massachusetts,
Civil Action No. 00-CV-12156-MEL, on March 9, 2001.
Petitioner timely-filed his Notice of Appeal on March 24,
2001.
The U.S. Court of Appeals for the First Circuit, Case
No. 01-1493, based on the papers submitted without oral
argument, affirmed the district court’s judgment with a
judgment entered on March 29, 2002.
The present Petition for Writ of Certiorari to this
Court is filed within ninety (90) days and is timely
pursuant to 28 U.S.C. 2101(c) and Rule 13(1) and (3).
Appeal of Final Order or Judgment
Petitioner appealed to the U.S. Court of Appeals
from the District Court’s Memorandum and Order of
March 9, 2001 and Judgment of August 8, 2001.
Petitioner seeks writ of certiorari from the Court of
Appeals’ Judgment dated March 29, 2002.
Petitioner states the State has been and continues to
be a defendant - respondent hereto as the Petitioner
questions the constitutionality of a statute of a State, and
further states that service has been made upon the State’s
Attorney General pursuant to 28 U.S.C. § 2403(b) and
Rule 29(4)(c).
XXXiV
;
i
:
|
Constitutional Provisions and Statutes Involved
The Second Amendment to the United States
Constitution states:
A well regulated Militia, being necessary to
the security of a free State, the right of the
people to keep and bear Arms, shall not be
infringed.
The Fifth Amendment to the United States
Constitution states, in pertinent part, that:
No person shall . . . be deprived of life,
liberty, or property, without due process of
law; nor shall private property be taken for
public use, without just compensation.
The Fourteenth Amendment to the United States
Constitution states, in pertinent part, that:
No state shall make or enforce any law
which shall abridge the privileges or
immunities of citizens of the United States;
nor shall any state deprive any person of
life, liberty, or property, without due
process of law; nor deny to any person
within its jurisdiction the equal protection
of the laws.
Massachusetts General Laws, Chapter 140, § 131(d)
in pertinent part provides:
Any person residing or having a place of
business within the jurisdiction of the
licensing authority ... may submit to such
XXXV
licensing authority . . . an application for a
Class A or Class B license to carry firearms,
or renewal of the same, which such
licensing authority or said colonel may
issue if it appears that the applicant is a
suitable person to be issued such license . .
. subject to such restrictions expressed or
authorized under this section, unless the
applicant . . . [emphasis added].
The full text of M.G.L. ch. 140, § 131 is included in
Appendix C.
XXXVI
PETITION FOR WRIT OF CERTIORARI
Petitioner, Alec S. Costerus, respectfully prays that
a Writ of Certiorari be granted to review, in part, the
decision of the United States District Court for the District
of Massachusetts granting Respondents’, Jane Swift, et al.,
Motion to Dismiss certain counts of Petitioner's
complaint, and the affirmation of same by the United
States Court of Appeals for the First Circuit.
Statement of the Case
This is an appeal from a dismissal of several counts
brought against, inter alios, Argeo Paul Cellucci, Thomas
F. Reilly, Jane Perlov, John J. O’Brien, East Boston District
Court, Commonwealth of Massachusetts’ (hereinafter,
collectively, the “ Defendant State Officials”) alleging that
the new Gun Control Act of 1998, St.1998, c. 180, that
amended M.G.L. c. 140, §§ 129B and 131, is
unconstitutional as the statute violates the Second, Fifth,
and Fourteenth Amendments to the U.S. Constitution,
and violates Articles I and XVII of the Massachusetts
Constitution.
‘The District Court dismissed Counts 6, 7, 9, 11, 12,
16,18, and 22 on the ground that the Second Amendment:
“(1) is inapplicable to the states; and (2) does not create an
individual right.” The District Court also granted the
Defendant State Officials’ Motion to Dismiss Counts 11,
14, 15, 16, 17, 19, 22, and 25 on the ground that (1) the
statute complies with Due Process because adequate post-
deprivation remedies are available; and (2) gun licenses
are neither property nor liberty interest. The District
Court’s Memorandum and Order of March 9, 2001 is
\
included in the Appendix hereto.
With the District Court's granting of Defendant State
Officials’ Motion to Dismiss all of the counts listed above,
Costerus’ 42 U.S.C. § 1983 claims seeking prospective
injunctive relief against these defendants in Counts 24, 34,
and 35 become moot. Conversely, had any of the above -
counts survived the motion, his § 1983 claims seeking
prospective injunctive relief from the statute would
remain justiciable.
The District Court judge ruled that Presser v. Illinois,
116 U.S. 252, 265 (1886), and United States v. Miller, 307
U.S. 174, 178 (1939) provides a well-settled interpretation
of the Second Amendment. Petitioner Costerus seeks
certiorari from this judgment.
The District Court also ruled that a gun license is
neither a “property” nor “liberty” interest is implicated
citing a state court decision in Chief of Police of Shelburne v.
Moyer, 16 Mass.App.Ct. 543, 453 N.E.2d 461 (1983) and -
other cases which have a distinctly different statutory
scheme than the one challenged by Petitioner Costerus
under St. 1998, c. 180 that amended M.G.L. ch. 140, § 131.
Under the new state gun law that requires a license to
carry firearms in order to merely possess firearms in
one’s home, Plaintiff Costerus contends that such a
statute creates a vested property right.
The property right necessarily exists because the
statute amended the provisions that previously allowed
the possession and ownership of firearms in one’s home,
whereas now, under the review new statutory scheme, a
license to carry is required for such ownership. By this
measure, the statute created a de facto property right as
such ownership is preconditioned upon on a license to
carry. Where firearm ownership is a constitutionally
protected liberty, a liberty interest attached to the license
Pee ee
to carry when such ownership is predicated on the
license. An application for a license to carry cannot be
arbitrarily or capriciously denied nor can the issuance of
a license be subject to the standardless discretion of the
issuing authority.
Statement of Facts
In 1998, Massachusetts overhauled its gun control
statutes by enacting St.1998, c. 180.
While relocating back to Massachusetts, on March
21, 1999, Costerus inquired about the new gun law at the
Concord Police Station.
Erroneously believing that Costerus’ previously
issued FID card was no longer valid, Sgt. Barry Neal
arrested Costerus for illegal possession of a firearm
without a permit.
Without probable cause, Sgt. Neal dispatched
Officer Timothy Landers to Costerus’ home to search for,
locate, and seize Costerus’ firearms, all without seeking,
obtaining, possessing, or having any knowledge of a
search warrant.
Officer Landers searched Costerus’ home and seized
three firearms (one rifle and two handguns), and
transported them to the Concord Police Station. Costerus
was imprisoned overnight, arraigned in the Concord
District Court, and posted $1,000 cash bail.
The Commonwealth’s prosecution terminated in
Costerus’ favor as the Commonwealth sought a dismissal
following Costerus’ successful motion to suppress the
illegally obtained, “fruit of the poisonous tree.”
With all the criminal charges against Costerus
having terminated in his favor, he then submitted an
application for a license to carry firearms on or about
November 24, 1999. Wetherbee denied Costerus’
application on December 31, 1999 on the basis of his
recent involvement in firearms related activities in the
Town of Concord. |
Costerus then filed a petition for judicial review in
the Concord District Court on January 3, 2000. The
Concord District Court ruled on March 20, 2000 in
Costerus’ favor reversing Wetherbee’s denial of Costerus’
application for a license to carry firearms and ordered
Wetherbee to issue such license.
On May 18, 2000, Wetherbee filed a complaint for
certiorari in the Middlesex Superior Court.
On October 17, 2000, Costerus filed a civil action in
the United States District Court for the District of
Massachusetts asserting, inter alia, that the
Commonwealth of Massachusetts and the Town of
Concord, Massachusetts and its officers violated his
rights under the state and federal constitutions.
- On May 1, 2001, the Middlesex Superior Court
issued its Memorandum of Decision and Order on
[Wetherbee’s] Motion for Judgment on the Pleadings in
Defendant Wetherbee’s favor, reversing the Concord
District Court's ruling.
On May 4, 2001, Costerus filed a Notice of Appeal in
the Middlesex Superior Court. This action is still pending
in the Massachusetts Appeals Court. Costerus’ two
firearms remain in the custody of the Concord Police
Department.
Reasons for Granting Writ of Certiorari
May it please the Court:
I. Second Amendment
For more than a century and a half, the Second
Amendment received no meaningful judicial attention.
For almost two centuries it received no scholarly
attention. Even when the United States Supreme Court
finally addressed the meaning of the amendment, in
United States v. Miller, 307 U.S. 174 (1939), the Court
rendered an opinion so opaque that inferior courts,
practitioners and scholastics are still arguing about the
holding of the case. Pro-gun advocates urge that the case
clearly recognizes a personal, individual constitutional
right to keep and bear arms. Anti-gun advocates, on the
other hand, contend that it just as clearly holds the right
to keep and bear arms to be only a collective right of the
States in maintaining a militia. That it can be argued to
stand for such diametrically opposed holdings suggests
that it may not stand for very much at all:
But when all is said and done, the only
certainty about Miller is that it failed to
give either side a clear-cut victory.
Most modern scholars recognize this
fact. For example Professor Eugene
Volokh describes Miller as “deliciously
and usefully ambiguous” in an article
about using the Second Amendment as
a teaching tool in constitutional law.
This is probably the most accurate statement that
can be made about the case. This Court is, in essence,
writing on a clean slate.
In the past two decades the amendment has been the
subject of intense historical and scholarly analysis. To
assist the Court in its research of the burgeoning
professional literature in this area and rather than restate
what others have said better, Costerus attempts to list the
most prominent scholars in the field, along with citations
_to their work.’ Principal among these scholars are
Professor Joyce Lee Malcolm, Dr. Stephen P. Halbrook,
Professor Robert J. Cottrol, Mr. David T. Hardy, Professor
Akhil Reed Amar, Professor Nelson Lund, Mr. David B.
Kopel, Mr. Brannon P. Denning, and Mr. J. Norman
Heath. The overwhelming conclusion of these analyses
is tnat the amendment says what it means and means
what it says.” What is most impressive about this near
unanimous consensus of academic opinion is that many
of the scholars are either self-identified “liberals” or
unconnected with the pro-gun movement; indeed, in a
tribute to intellectual honesty, a number of these authors
identify themselves as favoring gun control. E.g.,
Professor Gary Kleck of the University of Florida,
Professor William van Alstyne of Duke, Professor
Laurence H. Tribe of Harvard University, Professor
Sanford Levinson of the University of Texas, and Mr. Don
B. Kates, Jr., of San Francisco.
The result of this vast scholarly effort is to
demonstrate conclusively that the Framers of the
Constitution understood and intended the right to keep
' The scholarly work referred to herein is incorporated herein by reference,
with a full bibliography of these works included in Appendix D.
? In the words of the bumper sticker debate which surrounds this
controversial topic, one can now reasonably ask the anti-gun partisans,
“What part of ‘shall not be infringed’ don't you understand?”
and bear arms to be a fundamental right of the individual
citizen that had nothing to do with any “right” or power
of the States.
Moreover, this Court seems to have forecast this
result. From as early as 1857 to as recently as 1990, the
Court has recognized in dicta that the right to keep and
bear arms is a personal and individual right of free
citizens. See Scott v. Sandford, 60 U.S. (19 Howard) 398,
417,450 (1857), and United States v. Verdugo-Urquidez, 494
U.S. 259, 265 (1990). See also the concurring opinion of
Justice Thomas in Printz v. United States, 521 U.S.__, 117
S.Ct. 2365 (1997) in which he equated the Second
Amendment with the First Amendment, concluding that
the Supreme Court has never directly ruled on the
individual rights issue:
In Miller, we determined that the
Second Amendment did not guarantee
a citizen’s right to possess a sawed-off
shotgun because that weapon had not
been shown to be “ordinary military
equipment” that could “contribute to
the common defense.” Id. at 2385-2386.
As Justice Scalia has noted, “It would be strange to
find in the midst of a catalog of the rights of individuals
a provision securing to the states the right to maintain a
designated 'Militia."” Antonin Scalia, A Matter of
Interpretation: Federal Courts and the Law 3, 42-43
(Princeton Univ. Press, Princeton, N.J., 1997).
Coupled with this academic research into the Second
Amendment's - historical background is the law
enforcement community’s opinion thereon. In a recent
letter to the National Rifle Association, U.S. Attorney
General John Ashcroft expressed the opinion of the
Department of Justice:
Let me state unequivocally my view
that the text and original intent of the
Second Amendment clearly protect the
right of individuals to keep and bear
firearms. .. . This view comports with
all but unanimous understanding of the
Founding Fathers.’
Recognizing the “vast body of evidence,” he wrote,
“I believe it is clear that the Constitution protects the
private ownership of firearms for lawful purposes. In
addition, Attorney General Ashcroft recently urged this
Court to not grant certiorari in Emerson’s petition for
writ of certiorari. Emerson v. United States, Case No. 01-
8780, June 10, 2002, cert. denied.
It is important to note that Attorney General
Ashcroft’s view is not novel. During the 19" Century, the
official Supreme Court reports included summaries of
counsels’ arguments.
During the presidency of Andrew Jackson, Roger
Taney served as Attorney General from 1831 to 1833, later
becoming Chief Justice of the Supreme Court. As Taney’s
opinion in the famous Scott v. Sandford, 60 U.S. (19
Howard) 398 (1857) case made clear, Taney recognized
the Second Amendment as an individual right.
Later, serving as Attorney General under Presidents
Abraham Lincoln and Andrew Jackson, James Speed
explained in Ex parte Milligan, 71 U.S. 2 (1866) to construe
the Second, Third, Fourth, Fifth, and Sixth Amendments
in pari material. The Second Amendment belonged to
> Letter from U.S. Attorney General John Ashcroft to James J. Baker,
Executive Director of the National Rifle Association, May 17,2001. -
individuals, but if a Confederate rebel were disarmed, his
Second Amendment right would not be violated, since
the Second Amendment would not apply to him - even
though the Second Amendment carries no explicit
exception for wartime.
During President Benjamin Harrison’s
administration, U.S. Attorney General William H. H.
Miller defended the federal mailing ban by arguing that
even though it was a restriction on a Bill of Rights’
freedom, the Constitution allowed some restrictions:
“Freedoms of the press, like freedom of speech, and ‘the
right to keep and bear arms,’ admits of and requires
regulation, which is the law of liberty that prevents these
rights from running into license.” In re Rapier, 143 U.S.
110, 131 (1892).
Two of President Franklin Delano Roosevelt's
attorneys general, Homer Cummings and Robert Jackson,
who was later appointed to the Supreme Court, held the
same view. See Johnson v. Eisentrager, 339 U.S. 763 (1950).
More recently, Edwin Meese, who served as
Attorney General under President Reagan, now a scholar
at the Heritage Foundation, signed the amicus brief of
Academics for the Second Amendment, endorsing the
individual-rights position in the Fifth Circuit's hearing of
the appeal in United States v. Emerson, 99-10331, (5" Cir.).
The federal district courts’s case, United States v. Emerson,
(5" Cir. 1999), challenged the constitutionality of a federal
statute where Emerson was indicted for possession of a
firearm while being under a restraining order. The Court
ruled that a state court proceeding, without
particularized findings of the threat of future violence, to
automatically deprive a citizen of his Second Amendment
rights, was unconstitutional. The court wrote:
[B]y criminalizing protected Second
Amendment activity based upon a civil
state court order with no particularized
findings, the statute is over-broad and
in direct violation of an individual's
Second Amendment rights.
[A]lthough he may not be a criminal at
all, he is stripped of his right to bear
arms as much as a convicted felon.
Second Amendment rights should not
be so easily abridged.
It is clear from this opinion that Emerson’s Second
Amendment rights are a citizen’s individual rights.
The Emerson court also found that firearm
possession is a valuable liberty interest imbedded in the
Second Amendment and thus Emerson had a protected
liberty interest in firearm possession under the Fifth
Amendment's ‘Due Process’ clause. While the Emerson
opinion is not binding upon other circuits, much less this
Court, and while the plaintiff has appealed to the Court
of Appeals for the Fifth Circuit, Emerson provides guiding
precedent, yet underscores the diversity of this
controversial debate. Even among the federal circuits, the
Second Amendment's constitutional interpretation is not
settled. And just weeks ago, this Court denied Emerson’s
petition for certiorari. Emerson v. United States, Case No.
01-8780, June 10, 2002, cert. denied.
We find that the current attorney general is in
keeping with most of the attorneys general for the past
150 years and only out of step with his immediate
predecessor but into some rather better company. With -
the combination of the academic and law enforcement
communities’ opinion on the Second Amendment, the
remaining question then is whether M.G.L. c. 140, § 131
10
“infringes” upon this individual right. Because of the
paucity of direct Second Amendmentjurisprudence, there
is no judicial precedent on the meaning of “shall not be
infringed.” Costerus disputes the District Court's ruling
holding that Presser v. Illinois, 116 U.S. 252 (1886) and
United States v. Miller, 307 U.S. 174 (1939), provide a well-
settled interpretation of the Second Amendment.
If Miller was the only source of information about
the Second Amendment, the individual right vs.
government right argument might be impossible to
resolve conclusively. Fortunately, the Supreme Court has
addressed the Second Amendment in thirty-one other
cases, in dicta; the Court has never addressed the Second
Amendmentas an individual rights issue directly nor has
it considered whether Fourteenth Amendment
protections apply to the Second Amendment.
Accordingly, it is premature for the District Court in this
action to rely on the Presser and Miller decisions to hold
to that the issues involved in this action are “well-
settled.” The interpretation of the Second Amendment
remains, therefore, unsettled to this day, with the dicta
contained in the written opinions of the Justices of the
United States Supreme Court indicating that the Court
regards the Second Amendment as an individual right.
The line between dicta and ratio decendi is never firm, and
one day’s dicta may become another day’s holding.
While the Warren and Burger Courts offered mixed
records on the Second Amendment, the opinions from the
Rehnquist Court are just as clear as the opinions from the
Supreme Court Justices of the 19" Century: “the right of
the people to keep and bear arms” is a right that belongs
to individual American citizens. Although the
boundaries of the Second Amendment have only partially
been addressed by Supreme Courtjurisprudence, the core
11
of the Second Amendment is clear: the Second
Amendment - like the First, Third, Fourth, Fifth, Sixth,
and Fourteenth Amendments - belongs to “the people,”
not the government.
Chief Justice William Rehnquist specifically cited the
Second Amendment stating:
“[T]he people” seems to have been the
term of art employed in select parts of
the Constitution. | The preamble
declares that the Constitution is
ordained and established by “the
people of the United States.” The
Second Amendment protects “the right
of the people to keep and bear Arms,”
and the Ninth and Tenth Amendment
provided that certain rights and power
are retained by and reserved to “the
people.” See also U.S. Const. Amdt. 1
(“Congress shall make no law .. .
abridging .. . the right of the people
peaceably to assemble”) (emphasis
added); Art. 1, § 2, cl. 1 (“The House of
Representatives shall be composed of
Members chosen every second Year by
the People of the Several States”)
(emphasis added). While this textual
exegesis is by no means conclusive, it
suggests that “the People” protected by
the Fourth Amendment and by the First
and Second Amendment, and to whom
rights are reserved in the Ninth and
Tenth Amendments, refers to a class of
persons who are part of a national
community or who have otherwise
12
developed sufficient connection with
this country to be considered part of
that community. United States v.
Verdugo-Urquidez, 494 U.S. 259, 265
(1990).
The two Supreme Court decisions that the District
Court’s Memorandum cites as controlling are discussed
seriatim.
A. Presser v. Illinois
Presser v. Illinois,116 U.S. 252 (1886), involved an
Illinois statute which did not prohibit the possession of
arms, but merely prohibited “bodies of men to associate
together as military organizations, or to drill or parade
with arms in cities and towns unless authorized by law .
...” Id. at 264-265. Presser was indicted for parading a
private military unit of 400 armed men through the
streets of Chicago without a license.
1. Second Amendment Made Applicable to the States
via Fourteenth Amendment
Presser held that “the right of the people to keep and
bear arms shall not be infringed” is a limitation only upon
the power of Congress and the national government, and
not upon the States. But in view of the fact
that all citizens capable of bearing arms
constitute the reserved military force or
reserve militia of the United States ...,
the States . .. cannot prohibit the people
from keeping and bearing arms, so as to
deprive the United States of their
13
rightful resource for maintaining the
public security. Id. at 265.
The Court stated that the 5" and 6" sections of
Article XI of the Military Code of Illinois‘ under
consideration did not have the effect of depriving the
national government of its military resource. The District
Court's reliance upon such a narrow interpretation of
Presser ignores subsequent judicial interpretations.
First, while the Supreme Court has never directly
addressed the Second Amendment's application to the
States by the Fourteenth Amendment, the Supreme Court
has never ruled to the contrary either.
Justice Powell wrote for the plurality in Moore v. East
Cleveland, 431 U.S. 494, 502 (1976) quoting Justice Harlan’s
dissent in Poe v. Ullman, 367 U.S. 497 (1961):
the full scope with the liberty
guaranteed by the Due Process Clause
_ cannot be found in or limited by the
precise terms of the specific guarantees
elsewhere provided in the Constitution.
This “liberty” is not a series of isolated
points pricked out in terms of the taking
of property; the freedom of speech,
press, and religion; the right to keep
and bear arms; the freedom from
unreasonable searches and seizures; and
so on. It is a rational continuum which
broadly speaking, includes freedom
from all substantial arbitrary
impositions and purposeless restraints.
Id. at 543 (Harlan, J., dissenting
* Act of May 28, 1879, Laws of 1879, 192.
14
opinion).
In discussing the scope of the Fourteenth
Amendment in Planned Parenthood v. Casey, 505 U.S. 833
(1982), in the Court's opinion written by Justice Sandra
Day O’Connor approvingly quoted Justice Harlan’s
earlier statement that “the right to keep and bear arms”
is part of the “full scope of liberty” contained in the Bill of
Rights, and made applicable to the state by the
Fourteenth Amendment. Id. at 841. These two cases
illustrate how one day’s dicta may become another day’s
holding.
More recently, the Court again visited the
Fourteenth Amendment's protection of the right to keep
and bear arms in Albright v. Oliver, 510 U.S. 266 (1994)
when Justice Stevens, joined by Justice Blackmun,
dissented, quoting Justice Harlan’s analysis of the
meaning of the Fourteenth Amendment providing that
Fourteenth Amendment “liberty” of course belongs to
individuals, not to state governments. The very point of
the Fourteenth Amendment was to protect individual
liberty from state infringement.
Clearly, by these barometers, the Second
Amendment contained in the Constitution’s Bill of Rights
would seem dispositive on the question of whether-the
Fourteenth Amendment protects liberty and property —
interests. “The Fourteenth Amendment's procedural
protection of property is a safeguard of the security of
interests that a person has already acquired in specific
benefits” Board of Regents of State Colleges v. Roth, 92 S.Ct.
2701, 408 U.S. 564, 33 L.Ed.2d 548 (1972), that “extend
well beyond actual ownership of real estate, chattels, or
15
money.”° Likewise, “[i]n a Constitution for a free people, |
there can be no doubt that the meaning of ‘liberty’ must |
be broad indeed.” Board of Regents of State Colleges v. Roth,
citing Bolling v. Sharpe, 347 U.S. 497, 499 (1954); and |
Stanley v. Illinois, 405 U.S. 645 (1972). |
As discussed herein, the only plausible way that the
District Court could hold that the Second Amendment,
under Presser, is inapplicable to the States is to eschew
subsequent and modern holdings of the Supreme Court.
On this ground, the District Court erred and this Court
should reverse the District Court’s Order and the Court
of Appeals affirmation thereof.
2. Second Amendment Secures an Individual’s Right
to Keep and Bear Arms
The Presser Court concluded that the Illinois statute
did not infringe upon the Second Amendment since the
statute did not prohibit the keeping and bearing of arms,
but rather, prohibited the forming of private military
organizations and the performance of military exercises
in town by groups of armed men without a license to do
so. The Court found that such prohibitions simply “do
“not infringe the right of the people to keep and bear
arms.” Presser, at 265.
The Supreme Court seemed to affirm the holding in
United States v. Cruikshank, 92 U.S. 542 (1875) that the
Second Amendment protected individuals only against
action by the federal government. However, in the very
* See, e.g., Connell v. Higginbotham, 403 U.S. 207, 208, 91 S.Ct. 1772,
1773, 29 L.Ed.2d 418; Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586,
1591, 29 L.Ed.2d 90; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25
L.Ed.2d 287.
next -paragraph, the Court suggests that state
governments cannot forbid individuals to keep and bear
arms. Massachusetts law approaches this prohibition
when it upholds arbitrary, capricious, and standardless
discretion to its issuing authorities. |
After stating that “all citizens capable of bearing
arms” constitute the “militia,” the Court held that the
“States cannot ... prohibit the people from keeping and
bearing arms, as so to deprive the United States of their
rightful resource for maintaining the public security and
disable the people from performing their duty to the
general government.” Presser, at 265.
The District Court’s reliance upon Presser to hold
that the Second Amendment does not create an
individual right may come from the Supreme Court's
recognition of United States v. Cruikshank in which Chief
Justice Marshall said that “the right of the people to keep
and bear arms is not a right granted by the Constitution.
Neither is it in any manner dependent upon that
instrument for its existence.” Presser, at 265 quoting
Cruikshank, at 553.
Instead, according to Cruikshank, the individual's
right to arms is not created by the Second Amendment,
but merely protected by it, because the right derives from
natural law. The government of the United States when
established found it in existence, with the obligation to
afford it protection. The District
Court erred by ignoring the individual's right to
keep and bear arms, that is guaranteed by the Second
Amendment, because that right preexisted the
government to the United States and was recognized by
the Framers and in the Supreme Court as a fundamental
human right. The Supreme Court recognized that the
17
Constitution was powerless to create a preexisting,*
fundamental human right, but nevertheless seized its
obligation preserve it.
In concluding this discussion, the District Court is
correct only insofar as the Second Amendment does not
create an individual right to keep and bear arms as was
held in Cruikshank and recognized in Presser, but, ignored
the holdings of Cruikshank in which the Court held that
such rights were protected by the Second Amendment by
virtue of their preexistence. Accordingly, the District
Court’s reliance on Presser to hold that the Second
Amendment right to keep and bear arms is not an
individual’s right is flawed and the District Court's
granting of Respondent State Officials’ Motion to Dismiss
is inerror. The decision should be reversed and the case
remanded for further proceedings.
B. United States v. Miller
The Supreme Court’s most extensive and hotly
disputed Second Amendment decision, United States v.
Miller, et al., 307 U.S. 174 (1939) arose out of a 1938
prosecution of two bootleggers, Jack Miller and Frank
Clayton, for violating the National Firearms Act by
possessing a sawed-off shotgun without having paid the
required federal tax. The federal District Court dismissed
the indictment on the grounds that the National Firearms
Act violated the Second Amendment. United States v.
Miller, 26 F. Supp. 1002, 1003 (W.D.Ark. 1939).
The opinion, written by Justice James McReynolds,
nowhere explicitly says that the Second Amendment
° See Logan v. United States, 144 U.S. 263, 286-287 (1892); and Robertson
v. Baldwin, 165 U.S. 275, 280 (1897).
y 18
does, or does not, guarantee an individual right:
In the absence of any evidence tending
to show the possession or use of a
“shotgun having a barrel of less than 18
inches in length” at this time has some
reasonable relationship to the
preservation or efficiency of a well
regulated militia, we cannot say that the
second amendment guarantees the right
to keep and bear such instrument. ~
Certainly it is not within judicial notice
at this weapon is any part of the
ordinary military equipment or that its
use could contribute to the common
defense. Aymette v. State, 2 Humphreys
(Tenn.) 154, 158.
The Miller Court explained that “the militia
comprised all males physically capable of acting in
consort for the common defense . . . ordinarily when
called for service these men were expected to appear
bearing arms supplied by themselves and of the kind in
common use at the time.” Miller, at 179.
If the Second Amendment only protected the
National Guard, then the Supreme Court would have
thrown Jack Miller’s case out of Court for lack of
standing, since Miller was plainly not a member of the
National Guard. Yet the Supreme Court has never ruled
that individuals cannot raise Second Amendment claims.
Instead, the Supreme Court sent the case back to the trial
court for fact-finding about whether Miller’s particular
firearm (a sawed-off shotgun) was a militia-type weapon.
As the Miller case illustrates, individuals may raise
Second Amendment claims, even when they are not in
19
the National Guard, and not participating in any type of
militia activity. The only holding in Miller was that the
only firearms that the Second Amendment protects are
those that may be suitable for militia purposes.
The District Court ruling discusses, arguendo, that
even if the Second Amendment conferred an individual
right that was enforceable against a State, Costerus failed
to demonstrate how RespondentState Officials’ statutory
scheme abridged that right. Costerus, however,
appearing pro se, must only allege such an abridgement in
his Complaint. Heretofore, Costerus is not obligated to
present evidence in support of his claim as this would be
an issue for fact-finding and trial, and is not ripe for a
motion to dismiss at this stage of the proceedings.
The District Court opined that “[t]he [Respondent]
Commonwealth’s gun control statute allows law-abiding
persons to possess firearms with certain restrictions
intended solely to insure the safety of its citizens.”” This
is precisely the point at issue: Costerus is a law-abiding
citizen devoid of any criminal convictions. He contends
that the statute exceeds its reasoned balance by according
standardless discretion to local licensing authorities from
whom he is victim. Again, the District Court should find
that this is a trial issue for fact-finding as alleged, and
Costerus’ Complaint need not do more.
Regarding standardless, systematic unequal
treatment, the Supreme Court recently opined in the 2000
Presidential Election case that
[T]he use of standardless manual
recounts violates the Equal Protection
7 Memorandum and Order of the United States District Court for the District
of Massachusetts, Civil Action 00-12156-MEL, March 9, 2001, p. 8.
20
and Due Process Clauses” where “ [t]he
recount mechanisms implemented in
response to the decisions of the Florida
Supreme Court do not satisfy the
minimum requirement for non-arbitrary
treatment of voters necessary to secure
the fundamental right. ... The problem
inheres in the absence of specific
standards to ensure its equal
application. The formulation of
uniform rules to determine intent based
on these recurring circumstances is
practicable and, we conclude,
necessary.” Bush v. Gore, sa US.
(2000).
It would appear that Bush v. Gore would be
dispositive of this case where the Respondent
Commonwealth's granting of broad, yet standardless,
discretion under M.GLL. c. 140, § 131(d) across its 351
cities and towns would suffer a similar fate as Florida’s
election count and recount, and would be violating the
‘Equal Protection’ and ‘Due Process’ Clauses.
The District Court's reliance upon Miller to hold that
the Second Amendment does not create an individual
right is misplaced; the Miller opinion nowhere explicitly
says that the Second Amendment does or does not -
guarantee an individual right. In fact, arguendo, had the
Miller Court ruled that the Second Amendment was a
governmental right and not an individual right, then
there would have been no reason for the Supreme Court
to remand the case back to the District Court for fact-
finding to determine whether the particular firearm in
question was of a militia purpose. As a result, the only
plausible interpretation of Miller is to conclude that the
21
Second Amendment supports an individual right to keep
and bear arms.
II. Due Process
A. Adequacy of Post-Deprivation Remedy
1. Adequacy of Remedy Inadequate
Because the Concord Police were unable to obtain a
conviction for illegal possession of firearms in a court of
law (as Costerus held a valid FID card), the local licensing
authority arbitrarily and capriciously exercised his broad
discretion by relying on the fruit of the poisonous tree
and a sealed record of a dismissal as grounds to deny
Costerus of a license to carry. Costerus filed a petition for
judicial review and obtained a favorable decision
ordering the chief to issue a license to carry.
The chief filed an action in the nature of certiorari in
the state superior court that made new findings of fact,
reversed the district court’s decision, and upheld the
chief’s denial of Costerus’ application. Thus, Costerus
remains without his valuable property for which he has
always been properly permitted.
Costerus has had to file an appeal with the
Massachusetts Court of Appeals to reverse the superior
court decision and only recently filed his appellant's brief.
Indeed, the remedy has not yet proved adequate, and
given the court’s backlog, is likely some time away.
While the District Court is correct insofar as there is
a vehicle by which Costerus may seek to obtain post-
deprivation remedy, and is currently availing himself of
such remedy, such avenue has not yet proved adequate.
In fact, thus far, with the superior court ruling
—_ ee ee CL ew
incongruent with all of the preceding state caselaw, only
Costerus’ sheer persistence in the state courts will he
prove the remedy’s adequacy. To date, however, the
remedy has proved wholly inadequate.
2. Remedy for Post-Deprivation
With Costerus’ possession of a valid FID card, there
never should have been a deprivation in the very first
place. The remedy therefor is two-fold. First, Costerus is
must obtain a license to carry so he may regain his
lawfully possessed property that the Concord police
officers illegally seized and confiscated from his
residence. With the unconstitutional denial of Costerus’
application therefor, this remedy is inadequate.
Second, by denying Costerus of a valuable
governmental benefit, even if less than a constitutional
right, Costerus is entitled to seek remedy under the
federal and state civil rights statutes, 42 U.S.C. § 1983 and
M.GLL. c. 12, § 111, respectively, which is precisely the
goal of his federal civil rights action.
The Massachusetts Supreme Judicial Court ruled in
Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 373
N.E.2d 1128 (1978), that
Although we are aware that the
plaintiff, by statute, is not entitled to the
licenses [to carry firearms and sell
firearms and sell ammunition] ..., we
* It is important to note that the Gun Control Act set forth in St.1998, c. 180,
§ 73(a) caused Costerus’ FID card to expire while the Concord Police
Department had possession of his property. With this change in statute,
Costerus had to apply for a license to carry firearms pursuant to M.G.L. c.
140, § 131(d) in order to regain his property.
23
conclude on the basis of Perry v.
Sindermann, 408 U.S. 593, 92 S.Ct. 2694,
33 L.Ed.2d 570 (1972), that their
revocation, if made in retaliation for the
plaintiff's exercise of his First
Amendment rights, is actionable under
42 U.S.C. section 1983 (1970).
In Perry, the Supreme Court wrote:
For nearly a quarter-century, this Court
has made clear that even though a
person has no “right” to a valuable
governmental benefit and even though
the government may deny him the
benefit for any number of reasons, there
are some reasons upon which the
government may not rely. It may not
deny a benefit to a person on a basis
that infringes his Constitutionally
protected interests - especially, his
interest in freedom of speech. Id. at 597,
92 S.Ct. 2697.
After Perry, it has been widely recognized that if an
individual proves that a governmental benefit has been
denied for constitutionally impermissible reasons, that
individual is entitled to appropriate remedies under 42
U.S.C. section 1983 (1970). See Mabey v..Reagan, 537 F.2d
1036, 1045 (9" Cir. 1976); Jannetta v. Cole, 493 F.2d 1334,
1337 n. 5, 1338 (4 Cir. 1974); Smith v. Losee, 485 F.2d 334,
338, 340 (10" Cir. 1973). See also Williams v. Day, 412
F.Supp. 336, 340 n.1 (E.D.Ark.1976); Manfredonia v. Barry,
401 F.Supp. 762, 767-768 (E.D.N.Y.1975); Needleman v.
Bohlen, 386 F.Supp. 741 (D.Mass.1974); Brown v. Wilson,
373 F.Supp. 1045, 1049 (W.D.Pa.1974); O' Brien v. Galloway,
362 F.Supp. 901, 905 (D.Del.1973). Cf. Monroe v. Pape, 365
U.S. 167, 172, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). It would
appear that the Respondent State Officials’ assertion and
the District Court’s holding therefor contradict binding
precedent caselaw.
B. Gun Licenses as Property or Liberty Interests
The District Court relied, in part, on Chief of Police of
Shelburne v. Moyer,16 Mass.App.Ct. 543, 453 N.E.2d 461
(1983) to support dismissal of Counts 11, 14, 15, 16, 17, 19,
22 and 25, because neither “property” nor a “liberty
interest” is implicated by the denials of gun licenses.
Such reliance is misplaced as the facts of Moyer are
distinguishable from the instant action.
In Moyer, the Chief of Police of Shelburne Falls
operated under a predecessor statute where (i) persons
could possess a gun in the home with just a FID card; (ii)
the local licensing authority had no discretion regarding
the FID card if the applicant therefor was not statutorily
disqualified; and, (iii) Moyer had disqualifying
conditions’ under the then-existing statute.”°
Here, in Costerus’ action, under the present gun law,
(i) persons may not possess a handgun in the home with
just a FID card - a license to carry is required;" (ii) the
local licensing authority has broad discretion to issue a
license to carry: “the local licensing authority may issue
[the license] if it appears that the applicant is a suitable
° Moyer’s disqualifications included a sealed conviction of possession of a
controlled substance pursuant to M.G.L. c. 94C, § 34.
"M.G.L. c. 140, § 131.
'' M.GLL. c. 140, § 129B (6) as amended by St.1998, c. 180, § 29.
25
person to be issued such license. . . ;”” and, (iii) Costerus
has no history of disqualifying criteria under either the
preceding or current gun control laws.
Furthermore, because Costerus is not statutorily
disqualified,” the Commonwealth cannot, under
Cruikshank, arbitrarily forbid individuals to keep and bear
arms. Whereas the Second Amendment protects
Petitioner Costerus’ fundamental right, he has a profound
and legitimate claim of entitlement.
Under the guidelines established in Moyer, in which
the court held that:
In the absence of a finding that no
reasonable ground existed for the Chief
of police to refuse a license on the basis
that the defendant was not a suitable
person, the judge was in error in
ordering the issuance of the license to
the defendant
Costerus would be entitled to a license as the state
district court’* wherein Costerus petitioned for judicial
review found that the chief of police was precisely
without such basis as “there is no substantial evidence he
is and unsuitable person. ...”’* Applying this holding to
the instant matter where such absence is, itself, absent,
'?M.G.L. c. 140, § 131(d) as amended by St.1998, c. 180, § 41.
'3 The criteria that makes an applicant ineligible for a license to carry
firearms are set forth in M.G.L. c. 140, § 131(d) (i) through (vii), as
amended by St.1998, c. 180, § 41.
'* The Concord District Court, Docket No. 0047-CV-0001.
'S Findings of Fact and Conclusions of Law, Concord District Court, Docket
No. 0047-CV-0001, dated March 20, 2000 (Ostrach, J.).
26
eK HE
7 ete at
— ee re
Kibad surat e Sitlern ae thrust ahh tat
Moyer supports Costerus’ contention and should not be
relied upon in support of Respondent State Officials’
motion to dismiss.
The federal district court in United States v. Emerson,
(5 Cir. 1999) found that firearm possession is a valuable
liberty interest imbedded in the Second Amendment and
thus Emerson had a protected liberty interest in firearm
possession under the Fifth Amendment due process
clause.
In Board of Regents of State Colleges v. Roth, 408 U.S.
564, 569-570 (1972), the Supreme Court held that
The requirements of procedural due
process apply only to the deprivation of
interests encompassed by the
Fourteenth Amendment's protection of
liberty and property. When protected
interests are implicated, the right to
some kind of prior hearing is
paramount.
By establishing a statutory mechanism by which its
citizens may lawfully own and possess firearms, a liberty
interest was created and its dimensions defined by state
law. By this measure, Costerus has a meritorious claim of
entitlement to such state-created liberty interest and the
benefits arising therefrom.
Having chosen to extend the right of its citizens to
apply for, hold, and enjoy the privileges accorded to a
Class A license to carry firearms, including the carrying
of concealed firearms, the Respondent State Officials and
local licensing authorities may not withdraw that right on
grounds where fundamentally fair procedures to
determine whether Costerus is statutorily barred, or, is
based ona preponderance of legally admissible evidence
27
to establish his alleged unsuitability, and must therefore
recognize his legitimate entitlement to such license as a
property interest that is protected by the Due Process
Clause, and that may not be taken away without
observing some minimum procedures required by that
Clause.
Since Concord Police Chief's allegations of Costerus’
unsuitability, if sustained in the state appellate courts,
could seriously damage his good reputation as well as
interfere with his competitive aspirations, marksmanship
training, and firearms safety instruction, the Respondent
State Officials’ statutory provisions that allow for the
local police department's retention of his lawfully-
possessed personal property that was illegally seized and
confiscated from his home and the subsequent allowance
of such illegally obtained evidence as ground to support
the local licensing authority’s denial of Costerus’
application for a license to carry firearms immediately
collide with the ‘Due Process’ Clause’s prohibition
against arbitrary deprivation of liberty.
Denial of an application for a license to carry is not
de minimis and should not be imposed in complete
disregard of the Due Process Clause, especially given that
the allegations against him terminated in his favor.
Due Process requires, in connection with the denial
of an application for a license to carry firearms, that the
applicant be given oral or written notice of the basis for
such denial and if the applicant desires to so refute those
bases, be given an opportunity to present his version of
the evidence. Generally, notice and hearing should
precede the local licensing authority’s denial of the
application. The statute as set forth in M.G.L. c. 140, §§
129B (5) (as amended by St.1998, c. 180, § 29) and 131 (f)
(as amended by St.1998, c. 180, § 41) prescribes an after-
28
the-fact petition for judicial review.
Before a person is deprived of a protected interest,
he must be afforded opportunity for some kind of
hearing, “except for extraordinary situations where some
valid governmental interest is at stake that justifies
postponing the hearing until after the event.” Boddie v.
Connecticut, 401 U.S. 371, 379 (1971). At a minimum,
Costerus had a procedural due process right to a hearing
prior to his suffering the deprivation of rights at the
hands of the Concord Defendants’ illegal confiscation of
his lawfully held property.
Costerus’ liberty interest is of concern to several
hundred thousand licensed or permitted gun owners
across the Commonwealth of Massachusetts who once
lawfully kept handguns in their homes with a FID card,
and who, as a result of the statutory change, may
similarly have their liberty interests implicated, as well as
several million others across eleven states that have
discretionary statutes similar to Massachusetts’. Where
the Second Amendment is made applicable to the States
by the Fourteenth Amendment, which conveys liberty
rights and protects his property via procedural due
process, it was premature for the District Court to grant
the Respondent State Officials’ motion to dismiss noting
that neither a property nor liberty interest was
implicated. This is an issue for trial and is not ripe for
sucha motion. Accordingly, Counts 11, 14, 15, 16, 17, 19,
22, and 25 should be remanded to the District Court for
further proceedings.
Conclusion
WHEREFORE, for all the foregoing reasons, Petitioner
prays this Supreme Court grant Writ for Certiorari to find
29
(i) that the Second Amendment confers an individual
right; (ii) that the Second Amendment is made applicable
to the several States by the Fourteenth Amendment; (iii)
that Massachusetts’ statute, as currently worded, grants
the exercise of broad, yet standardless, discretion to local
licensing authorities, that violates the Due Process Clause
of the Fifth Amendment; and, (iv) that the local licensing
authority’s ex post facto consideration of acts violates the
‘Due Process’ provisions of the Fourteenth Amendment;
and in so finding on any of the above, to reverse the
District Court’s Order and the Court of Appeals’
affirmation thereof as applied to Counts 6, 7, 9, 11, 12, 14,
15, 16, 17, 18, 19, 22, and 25 and to remand for further
proceeding consistent with that directive.
Respectfully submitted on this 9" day of September,
2002, by,
- Petitioner, pro se,
Ubi:
Alec S. ‘Costerus
1537 Sudbury Road
Concord, MA 01742-5826
Telephone: (978) 318 9739
30
Appendix A
Judgement, United States District Court for the District of
Massachusetts, 00CV12156 MEL,
Entered March 9, 2001 ......cscccdevcccces A2
Order, United States District Court, District of
Massachusetts, 00CV12156 MEL,
Entered July 7, 2001 ..........- eee seen eens A 14
Judgment in a Civil Case, United States District Court,
District of Massachusetts, 00CV12156 MEL,
Entered August 8, 2001 ..........-.--eees A 16
Al
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
ALEC S. COSTERUS,
Plaintiff,
Civil Action
Vv. No. 00-12156-MEL
BARRY NEAL, et al.,
Defendants.
> a Le ee ee a
MEMORANDUM AND ORDER
LASKER, DJ.
Alec Costerus brings this action pro se against the
Commonwealth of Massachusetts, various employees of
the Commonwealth (collectively, the “Commonwealth”)
two Massachusetts towns, Concord and Marion and ©
assorted town employees alleging that they violated his
state and federal “constitutional rights” to store and
posses firearms. On December 1, 2000, the
Commonwealth moved to dismiss the claims against it.
The motion is granted.
On April 1, 1978, Costerus applied for and received
a Firearms Identification Card (“FID-Card”) from the
police station in his then hometown of Marion,
Massachusetts. The FID-Card allowed him to possess
firearms. In the mid-1980s, Costerus moved out of
Massachusetts. Under Massachusetts gun laws (M.G.L.
~ Ch. 140,§§ 121-131P), Costerus was required to notify the
A2
authority that had granted him his FID-Card of his move
within thirty days. Costerus failed to notify the Marion
Police Department. Subsequently, Costerus moved to
Concord, Massachusetts, where he lives today.
In 1998, Massachusetts overhauled its gun laws,
generally increasing the regulation of gun ownership.
Under St.1998, Ch. 180, § 73, the plaintiff, as a holder of
an FID-Card issued before the new law, had one year to
comply with the new restrictions.
Costerus’ Complaint centers around a purportedly
illegal search, seizure and arrest by the Concord police
which occurred on March 21, 1999. On that day, Costerus
alleges the following: that he had a verbal fight with his
wife; after the fight, he sought police assistance to gather
“a few days worth of clothes;” the police instructed him
to go to the police station and to wait while defendant,
Officer Barry Neal, spoke to his wife; while at the station,
Costerus saw a pamphlet concerning the new gun laws;
Costerus then inquired about what he needed to do to
comply with the new law; when Officer Neal returned
from the Costerus’ home (where Costerus’ wife had told
him that a non-physical fight had occurred), Officer Neal
questioned Costerus about his gun ownership and
_ whether he had a valid FID-Card; Costerus answered,
“yes--but it was issued twenty years ago--however, I still
think it is valid;” Officer Neal then responded “a lot has
changed in twenty years” and arrested Costerus for
unlawful possession of a firearm, presumably believing
that he did not have a valid FID-Card; Officer Neal
ordered another officer to search Costerus’ home; the
officer then searched and seized several guns from the
home without consent or a warrant; while Costerus was
being booked, the police required that he give them his
social security number or else he would “never get out of
A3
here,” and finally, that Costerus was then held overnight
in police custody.
On March 22, 1999, Costerus was arraigned in
Concord District Court and charged with two counts of
illegal possession of a firearm (M.G.L. ch. 269, § 10(h))
and with domestic assault and battery (M.G.L. ch. 265, §
13A). Later, Costerus was charged with not properly
securing weapons which were found in his home (M.G.L.
ch. 140, § 131L(c)). All or the charges, except for not
properly securing his firearms, were subsequently
voluntarily dropped by the Commonwealth. This final
charge was dropped because the state court had ruled
that the Commonwealth’s evidence was barred as the
“fruit of a poisonous tree” because Officer Neal had failed
to give Costerus Miranda warnings when he was
arrested.
After the charges against Costerus had been
dropped, he filed an application with the Concord Chief
of Police, Leonard J. Wetherbee, for a “License to Carry,”
the license created under the new 1998 law that allowed
the holder to own certain types of guns (“large capacity
weapons” ). Chief Wetherbee denied his request because
of Costerus’: (1) “failure to comply with a Concord Police
Administrative Policy requiring the completion of a
firearms safety course when applying for a License to
Carry;” and (2) “his recent involvement in domestic and
firearms related issues in the Town of Concord.”
Costerus then appealed the denial to the Massachusetts
Superior Court, which reversed it as an abuse of
discretion. Chief Wetherbee is currently appealing this
decision. Costerus also applied to renew his FID-Card
before the expiration of the one-year grace period. After
a two- month investigation, which according to Costerus
“illegally invaded into the plaintiff's privacy,” Chief
,A4
Wetherbee granted the license.
Based on these events, Costerus, proceeding pro se,
has filed a ninety-four page Complaint with over forty
Counts mainly asserting that the Commonwealth,
Concord and Marion defendants violated his rights to
store and possess firearms under the Massachusetts and
federal constitutions. The Commonwealth now moves to
dismiss all of the Counts against it because: (1) Eleventh
Amendment immunity bars some of Costerus’ claims; (2)
Costerus’ Due Process and Second Amendment claims
are not actionable; (3) The district attorney defendants,
Martha Coakley and Erin Duggan are entitled to absolute
prosecutorial immunity; and (4) Costerus’ § 1983 claims
are invalid because the Commonwealth and its officials
are not “persons” subject to the statute.
Il.
A. Eleventh Amendments Immunity
The Commonwealth argues that the Eleventh
Amendment bars Counts 8, 9, 20, 24, 25, 30, 34 and 35
because these Counts attempt to hold the Commonwealth
liable for violations of Massachusetts law in federal court.
In support of its position the Commonwealth cites
Pennhurst State Sch. and Hosp. v. Holderman, 465 U.S.
98, 121 (1984), in which the Supreme Court held that a
suit in federal court against a state alleging violation of its
own laws is barred by the Eleventh Amendment.
Costerus responds that Eleventh Amendment
immunity does not apply because: (1) he is a citizen of
Massachusetts and is suing Massachusetts; (2) he is
requesting prospective injunctive relief; and (3) the
A5
supplemental jurisdiction statute, 28 U.S.C. § 1367,
overrides, or abrogates, the Eleventh Amendment.
The Commonwealth’s motion is granted.’ The
reasons given by Costerus for rejecting Eleventh
Amendment immunity are without merit. First, although
the words of the Eleventh Amendment would appear to
allow suits against a state by its own citizens, the
Amendment has been consistently interpreted to bar such
suits. Hans v. Louisiana, 134 U.S. 1 (1890).
Second, the fact that Costerus seeks to remedy
purported violations of Massachusetts law through
prospective injunctive relief is irrelevant to Eleventh
Amendment analysis. As the Supreme Court explained in
Pennhurst, 465 U.S. at 106: “a federal court’s grant of
relief against state officials on the basis of state law,
whether prospective or retroactive . . . conflicts directly
with the principles of federalism that underlie the
Eleventh Amendment.”
Third, Costerus’ argument that Congress abrogated
the States’ Eleventh Amendment immunity in passing the
supplemental jurisdiction statute (28 U.S.C. § 1367) is
without merit. In order for Congress to have abrogated
the States’ Eleventh Amendment immunity through the
passage of the supplemental jurisdiction statute, it would
have had to have passed the statute both: (1) pursuant §
' The Commonwealth has moved to dismiss counts 24, 25, and 34 based on
the Pennhurst rule. Counts 25 and 34 make claims exclusively under federal
law. Count 24 makes claims under both Massachusetts and federal law. -
The Commonwealth’s Pennhurst argument has been understood as
requesting only the dismissal of claims brought under Massachusetts law
and accordingly, Counts 25, 34 (federal claims) and those portions of Count
24 which are based exclusively on federal law are not dismissed based on
Pennhurst.
renee PA
patra
SO ek ee
= Lune ogi SRN TOE EN FTE 8 rs ptaade ark SR te tla ESR LCN a Sale Pa bd
5 of the Fourteenth Amendment; and (2) with an
“unequivocal” intent to abrogate the States’ Eleventh
Amendment immunity.’ Neither factor is even arguably
present here. See Freeman v. Oakland Unified Sch. Dist.,
179 F.3d 846.
B. Costerus’ Second Amendment Claims
The Commonwealth moves to dismiss Counts 6, 7,
9,11, 12, 16, 17, and 22 to the extent that they rely on the
Second Amendment because the Amendment: (1) is
inapplicable to the States; and (2) does not create an
individual right. Presser v. Illinois, 116 U.S. 252, 265
(1886); United States v.Miller, 307 U.S. 174, 178 (1939).
Costerus responds that a passing reference made in
Justice Harlan’s dissent in Poe v. Ullman, 367 U.S. 497,
543 (1961), to the “right to bear arms” and quoted in two
majority opinions not dealing with the Second
Amendment,4 establishes such a right.
The Commonwealth’s motion is granted. Presser
and Miller control. Justice Harlan’s reference in his
dissent in Poe, to “the right to bear arms” does not
purport to be an adjudication that such a right exists and
the quotation of his dissent in later cases appears solely in
a discussion of the nature of Due Process."
2 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) and its progeny
have held that claims of Congressional abrogation of Eleventh Amendment
immunity could only be made under § 5 of the Fourteenth Amendment.
3 Green v. Mansour, 474 U.S. 64, 68 (1985). (9 Cir. 1999) (holding that
in enacting 28 U.S.C. § 1367 Congress did not abrogate the States’ Eleventh
Amendment immunity).
4 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 848
(1992); Moore v. City of East Cleveland, 431 U.S. 494, 502 (1976).
A7
Moreover, even if the Second Amendment did
confer an individual right (enforceable against a State),
Costerus has not demonstrated how the
Commonwealth's statutory scheme abridged the right.
The Commonwealth’s gun control statute allows
law-abiding persons to possess firearms with certain
restrictions intended solely to insure the safety of its
citizens. Such a statute, which strikes a reasoned balance
between the interests of gun owners and the interests of
citizens to be free from the potential dangers of guns does
not offend, even a quite expansive and personal
conception, of the Second Amendment. Accordingly,
Counts 6, 7, 9 and 16 are dismissed in their entirety and
Counts 11, 12, 18, and 22 are dismissed to the extent that
they make Second Amendment claims.
Costerus’ Due Process Claims
In Counts 11, 14, 15, 16,17, 19, 22 and 25 Costerus
asserts that the Commonwealth’s gun statute violates
Due Process because it grants the Chiefs of Police
discretion to: (1) deny Costerus a “license to carry;” (2)
refuse to renew his FID-Card; and (3) seize his guns.
Moreover, Costerus argues that “because M.G.L. Ch. 140,
§ 131L is a new statute with no mens rea requirement, it
violates [Costerus’] Fifth Amendment due process rights
[because he can be] subject to prosecution without proof
of knowledge that he was violating the statute.”
Complaint, { 178.
The Commonwealth moves to dismiss. It argues
that: (1) the statute complies with Due Process because
adequate post-deprivation remedies are available; and (2)
Costerus cannot assert Due Process claims based on
denials of gun licenses because neither a “property” nor
ee Cee doe uk aod lie LeSabre lp Alan aa
“liberty” interest is implicated. The Commonwealth also
denies that its gun statute imposes criminal liability for
weapons storage without requiring mens rea, a guilty state
of mind.
The Commonwealth’s. motion is granted. Costerus’
Due Process claims based on the Commonwealth’s initial
denial of a gun license fail because Massachusetts
provides an adequate post-deprivation remedy. Under
M.GLL. ch. 140, §, 129B, Costerus was entitled to and
received judicial review of the initial gun license denial.
The Supreme Court has held that the availability of
post-deprivation judicial review is a particularly
important factor in determining whether Due Process has
been accorded; Zinermon v. Burch, 494 U.S. 113 (1990).
Because judicial review was readily available to Costerus,
his Due Process claims are not actionable. :
Many of these claims also fail because neither a
“property” nor a “liberty” interest is implicated by the
Commonwealth’s initial denial of a “License to Carry.”
Costerus did not have a “legitimate claim of entitlement”
to a “License to Carry.” Chief of Police of Shelburne v.
Moyer, 16 Mass.App.Ct. 543, 547, 453 N.E.2d 461 (1983)
(plaintiff did not have a liberty or property interest in a
gun license); see Board of Regents v. Roth, 408 U.S. 564 —
(1972) (describing the stringent standard for making a
federal Due Process claim based onan “entitlement”). An
applicant seeking “License to Carry” has neither a
“property” nor “liberty” interest, but is seeking a
privilege, which can be extended (or refused) by the
Commonwealth without Due Process implications.’ See
5 Similarly, Count 21, Costerus’ “impairment of contract” claim is based on
his FID-Card which he alleges is a “contract” with the Commonwealth.
This claimis dismissed. Under Massachusetts law, Costerus’ FID-Card was
A9
Medina v. Rudman, 545 F.2d 244, 250-51 (1* Cir. 1976)
(holding that a potential greyhound license applicant
under New Hampshire law had neither a liberty or
property interest in her application); Luk_v.
Commonwealth, 421 Mass 415, 658 N.E.2d 664, 669 (1995)
(holding that a driver's license is neither a contract nor
property right); Town of Milton v. Commonwealth, 416
Mass. 471, 623 N.E.2d 482, 484 (1993) (holding that under
Massachusetts law for a statute to create a contract there
must be clear legislative intent to do so); and Mosby v.
McAteer, No. 99-6504, 2001 WL 91407 (R.I. Super. Jan. 10,
2001) (holding that an applicant for a gun license under
Rhode Island’s parallel gun licensing statute did not have
either a “liberty” or “property” interest in their
application).
Nor does the Commonwealth’s criminal firearms
storage statute (M.G.L. 140, § 131L) violate Due Process.
Contrary, to Costerus’ argument, the courts have held that
violation of a parallel statute (M.G.L. ch. 269, § 10(a))
requires a guilty state of mind. Commonwealth v.
Sampson, 383 Mass. 750, 422 N.E.2d 450, 456 (1981) and
Commonwealth v. Jackson, 369 Mass. 904, 344 N.E.2d
166, 173 (1976), both held that a guilty state of mind is
required in order to convict a person of the closely
analogous crime of unlawful possession of a firearm and
a license, not a contract, and cannot be the basis of an impairment of
contract claim. See Luk, 658 N.E.2d at 669 (holding that a driver’s license
is not a contract right). Count 25, alleges that the Commonwealth conspired
with local authorities to deny Costerus the “privilege” of gun ownership
purportedly in violation of the Due Process Clause. This claim is without
merit because even if officers of the Commonwealth had “conspired” to
deprive him of gun ownership such a claim would not be actionable in
federal court because the “conspiracy” did not deprive him of any federally
protected right and adequate post-deprivation remedies exist.
there is no reason to believe that the Supreme Judicial
Court would rule any differently with respect to the
firearms storage statute then it did when presented with
the firearms possession statute.
D. Costerus’ Claims Against the District Attorney
Defendants
In Counts 6, 8, 9, 11 and 33, Costerus asserts claims
against District Attorney Martha Coakley and Assistant
District Attorney Erin Duggan for their roles in
prosecuting him for the events of March 21, 1999. The
Commonwealth moves to dismiss on the grounds of
prosecutorial immunity. The Commonwealth’s motion is
granted. Coakley and Duggan are entitled to absolute
immunity from a suit for monetary damages for actions
taken in their official capacity as advocates of the state.
Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). Count
33 is dismissed.°
E. Costerus’ 42 U.S.C. § 1983 Claims Against the
Commonwealth
In Counts 24, 34 and 35, Costerus seeks to hold the
Commonwealth liable under 42 U.S.C. § 1983 for the
actions of its officers undertaken sin their official
capacities which purportedly violated federal law. The
6 Counts 6, 8, 9 and 11 are already dismissed, as described above, by either
the Eleventh Amendment or because they do not state a federal claim.
Count 33 is dismissed against the District Attorney defendants because it
asserts a claim exclusively for money damages which is contrary to
Buckley’s absolute immunity rule. Costerus claims that he may sue the
district attorney defendants for prospective injunctive relief. Costerus is
correct, however, as his Complaint is currently written, it does not do so.
Amt |
Commonwealth moves to dismiss, arguing that neither it
nor its officers are “ persons” subject to § 1983, citing Will
v. Michigan Dept. of State Police, 491 U.S. 58 (1989), in
support of its position. The Commonwealth's motion is
granted to the extent that it seeks to prevent Costerus
from suing the Commonwealth or its officials for money
damages. In Will, 491 US. at 70 n.10, the Supreme Court
noted that while generally a state official is nota“ person”
subject to suit under § 1983, a state official is considered
a “person” under § 1983 when she is sued in her official
capacity for prospective injunctive relief. Thus, to the
extent that Costerus seeks prospective injunctive relief
under § 1983 against officials of the Commonwealth his
claims are not barred by Will. However, this point is
academic. These Counts still fail to state a claim because,
as described above, Costerus has not alleged an
actionable violation of federal law.
Il.
From Costerus’ ninety-four page Complaint and
other filings it is clear that he is an intelligent and
tenacious person who is understandably troubled by his
interactions with the Concord Police Department over his
possession of firearms. However, the fact that Costerus
appears to have stated a claim against Concord does not
give him an unfettered license to file a multiplicity of
patently frivolous claims against either the
Commonwealth or the Town of Marion. Fed.R.Civ.P. 11
prohibits such conduct even by a party appearing pro se.
In the future, Costerus should exercise more care in
separating his tenable legal arguments from those which
are unsupportable. The Commonwealth’s motion to
dismiss is granted. Costerus’ state law claims and his
A12
federal claims which are barred exclusively by Zinermon
are dismissed without prejudice. Costerus’ other federal
claims are dismissed with prejudice.
It is so ordered.
Dated: March 9, 2001 s/ Morris E. Lasker
Boston, Massachusetts US.D_J.
A113
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ALEC S. COSTERUS,
Plaintiff,
No. 00-12156-MEL
Vv.
GOVERNOR PAUL
CELLUCCL, et al.,
Defendants. ORDER
> a tL Lt Le ee ee ee
LASKER, D.J. ,
Paul Cellucci, former Governor of the
Commonwealth of Massachusetts, Attorney General
Thomas Reilly, District Attorney Martha Coakley,
Assistant District Attorney Erin Duggan, Secretary of the
Executive Office of Public Safety Jane Perlov,
Commissioner of Probation John J. O'Brien, the East
Boston District Court, the Commonwealth of
Massachusetts, the Town of Marion, Brian J. Scott and
Jonathan Philbrook (collectively, the “Non-Concord
Defendants" - the Town of Concord and its officers being
the only remaining defendants) move for entry of final
judgment under Fed.R.Civ.P. 54(b). Costerus has not
filed an opposition. The request is granted because:
(1) Entry of a final judgment dismissing the action
against the Non-Concord Defendants will dispose of all
of the claims against them in this action;
Al4
(2) There is no just reason to delay the entry of
final judgment. The dismissal of the Non-Concord
Defendants is based on the plaintiff's failure to state a
cognizable claim against them under Fed.R.Civ.P.
12(b)(6). The reasons supporting this court's
determination are distinct from the factual and legal
issues pertaining to the other defendants. An appeal of
the Non-Concord Defendants dismissal would not
require the consideration of any issue that might be
raised even if plaintiff or the other defendants ultimately
appeal a judgment in the pending claims. Further,
resolution of the pending claims would not moot an
appeal of the Non-Concord Defendants’ dismissal
because the issues are distinct. An adjudication of such
an appeal would not delay or otherwise impede
resolution of the remaining claims; and
(3) If an appeal of Non-Concord Defendants’
dismissals is delayed until the end of the case and if such
an appeal is successful, both plaintiff and the Non-
Concord Defendants would be prejudiced because they
would then be required to resume litigation, including
discovery.
Therefore, it is hereby ordered that a judgment
enter dismissing from this action the Non-Concord
Defendants in their entirety, with each party bearing its
his own the legal fees, costs, and expenses.
It is so ordered.
Dated: March 9, 2001 s/ Morris E. Lasker
Boston, Massachusetts U.S.D,J.
A15
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ALEC S. COSTERUS
Plaintiff(s)
V. Civil Action
No. 00-12156-MEL
BRIAN J. SCOTT,
JONATHAN F. PHILBROOK,
ARGEO PAUL CELLUCCI
THOMAS REILLY
MARTHA COAKLEY
ERIN DUGGAN
JOHN J. O’BRIEN,
EAST BOSTON DISTRICT
COURT
TOWN OF MARION,
COMMONWEALTH OF
MASSACHUSETTS
Defendant(s)
[UDGMENT IN A CIVIL CASE
LASKER, S.D.].
Jury Verdict. This action came before the court for
a trial by jury. The issues have been tried and the
jury has rendered its verdict.
Decision by the court. The issues have been tried
or heard and a decision has been rendered.
A 16
IT IS ORDERED AND ADJUDGED:
In Accordance with the Court’s Order of July 7,
2001; That judgment enter dismissing from this case the
Non Concord defen[d]ants as follow[s]: Argeo Paul
Cellucci, Thomas Reilly, Martha Coakley, Erin Duggan,
John J. O’Brien, East Boston District Court, Jonathan F.
Philbrook, Town of Marion and the Commonwealth of
Massachusetts. With each party bearing his own legal
fee, costs and expenses.
TONY ANASTAS,
CLERK OF COURT
Dated: 8/8/01 By: s/ George H. Howarth
Deputy Clerk
A117
Appendix B
Judgement, United States Court of Appeals for the First
Circuit, Case No. 01-1493,
Entered April 29, 2002
Bl
United States Court of Appeals
For the First Circuit
No. 01-1493
ALEC S. COSTERUS,
Plaintiff, Appellant,
V.
BARRY NEAL, ET AL.,
Defendants, Appellees.
Before
Lynch, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
JUDGMENT
Entered: March 29, 2002
The judgment of the district court is affirmed essentially
for the reasons stated in its Memorandum and Order of
July 7, 2001. See also Thomas v. members of City Council
of Portland, 730 F.3d 41, 42 (1* Cir. 1984) (per curiam).
We do not reach appellant’s argument, abandoned on
appeal, that the statutory definition of “large capacity
weapon” is unconstitutionally vague. Cf. Gun Owners’
Action League, Inc. v. Swift, ___ F.3d ___, 2002 WL 434188,
at *10 (1* Cir. Mar. 25, 2002) (finding similar claim not
ripe for review).
By the Court:
Richard Cushing Donovan,
Clerk
By: Janice M. O*Neil
Chief Deputy Clerk
B3
Appendix C
Massachusetts General Laws, Chapter 140, § 131
M.GLL., c. 140, § 131, as amended by Chapter 180 of the
Acts of 1998, “An Act Relative to Gun Control in the
Commonwealth,” approved on July 23, 1998, effective
ninety (90) days thereafter on October 21, 1998, states:
Section 131. All licenses to carry firearms shall be
designated Class A or Class B, and the issuance and
possession of any such license shall be subject to the
following conditions and restrictions:
(a) A Class A license shall entitle a holder thereof to
purchase, rent, lease, borrow, possess and carry: (i)
firearms, including large capacity firearms, and feeding
devices and ammunition therefor, for all lawful purposes,
subject to such restrictions relative to the possession, use
or carrying of firearms as the licensing authority deems
proper; and (ii) rifles and shotguns, including large
capacity weapons, and feeding devices and ammunition
therefor, for all lawful purposes; provided, however, that
the licensing authority may impose such restrictions
relative to the possession, use or carrying of large
capacity rifles and shotguns as it deems proper. A
violation of a restriction imposed by the licensing
authority under the provisions of this paragraph shall be
cause for suspension or revocation and shall, unless
otherwise provided, be punished by a fine of not less than
$1,000 nor more than $10,000; provided, however, that
the provisions of section 10 of chapter 269 shall not apply
to such violation.
i
The colonel of state police may, after an investigation,
grant a Class A license to a club or facility with an on-site
shooting range or gallery, which club is incorporated
under the laws of the commonwealth for the possession,
storage and use of large capacity weapons, ammunition
therefor and large capacity feeding devices for use with
such weapons on the premises of such club; provided,
however, that not less than one shareholder of such club
shall be qualified and suitable to be issued such license;
and provided further, that such large capacity weapons
and ammunition feeding devices may be used under such
Class A club license only by such members that possess
a valid firearm identification card issued under section
129B or a valid Class A or Class B license to carry
firearms, or by such other persons that the club permits
while under the direct supervision of a certified firearms
safety instructor or club member who, in the case of a
large capacity firearm, possesses a valid Class A license
to carry firearms or, in the case of a large capacity rifle or
shotgun, possesses a valid Class A or Class B license to
carry firearms. Such club shall not permit shooting at
targets that depict human figures, human effigies, human
silhouettes or any human images thereof, except by
public safety personnel performing in line with their
official duties.
No large capacity weapon or large capacity feeding
device shall be removed from the premises except for the
purposes of: (i) transferring such firearm or feeding
_ device to a licensed dealer; (ii) transporting such firearm
or feeding device to a licensed gunsmith for repair; (iii)
target, trap or skeet shooting on the premises of another
club incorporated under the laws of the commonwealth
and for transporting thereto; (iv) attending an exhibition
C2
or educational project or event that is sponsored by,
conducted under the supervision of or approved by a
public law enforcement agency or a nationally or state
recognized entity that promotes proficiency in or
education about semiautomatic weapons and for
transporting thereto and therefrom; (v) hunting in
accordance with the provisions of chapter 131; or (vi)
surrendering such firearm or feeding device under the
provisions of section 129D. Any large capacity weapon or
large capacity feeding device kept on the premises of a
lawfully incorporated shooting club shall, when not in
use, be secured in a locked container, and shall be
unloaded during any lawful transport. The clerk or other
corporate officer of such club shall annually file a report
with the colonel of state police and the executive director
of the criminal history systems board listing all large
capacity weapons and large capacity feeding devices
owned or possessed under such license. The colonel of
state police or his designee, shall have the right to inspect
all firearms owned or possessed by such club upon
request during regular business hours and said colonel
may revoke or suspend a club license for a violation of
any provision of this chapter or chapter 269 relative to the
ownership, use or possession of large capacity weapons
or large capacity feeding devices.
(b) A Class B license shall entitle a holder thereof to
purchase, rent, lease, borrow, possess and carry: (i) non-
large capacity firearms and feeding devices and
ammunition therefor, for all lawful purposes, subject to
such restrictions relative to the possession, use or
carrying of such firearm as the licensing authority deems
proper; provided, however, that a Class B license shall
not entitle the holder thereof to carry or possess a loaded
C3
firearm ina concealed manner in any public way or place;
and provided further, that a Class B license shall not
entitle the holder thereof to possess a large capacity
firearm, except under a Class A club license issued under
this section or under the direct supervision of a holder of
a valid Class A license at an incorporated shooting club
or licensed shooting range; and (ii) rifles and shotguns,
including large capacity rifles and shotguns, and feeding
devices and ammunition therefor, for all lawful purposes;
provided, however, that the licensing authority may
impose such restrictions relative to the possession, use or
carrying of large capacity rifles and shotguns as he deems
proper. A violation of a restriction provided under this
paragraph, or a restriction imposed by the licensing
authority under the provisions of this paragraph, shall be
cause for suspension or revocation and shall, unless
otherwise provided, be punished by a fine of not less than
$1,000 nor more than $10,000; provided, however, that
the provisions of section 10 of chapter 269 shall not apply
to such violation.
A Class B license shall not be a valid license for the
purpose of complying with any provision under this
chapter governing the purchase, sale, lease, rental or
transfer of any weapon or ammunition feeding device if
such weapon is a large capacity firearm or if such
ammunition feeding device is a large capacity feeding
device for use with a large capacity firearm, both as
defined in section 121.
(c) Either a Class A or Class B license shall be valid for the
purpose of owning, possessing, purchasing and
transferring non-large capacity rifles and shotguns, and
for purchasing and possessing chemical mace, pepper
C4
spray or other similarly propelled liquid, gas or powder
designed to temporarily incapacitate, consistent with the
entitlements conferred by a firearm identification card
issued under section 129B.
(d) Any person residing or having a place of business
within the jurisdiction of the licensing authority or any
person residing in an area of exclusive federal jurisdiction
located within a city or town may submit to such
licensing authority or the colonel of state police, an
application for a Class A or Class B license to carry
firearms, or renewal of the same, which such licensing
authority or said colonel may issue if it appears that the
applicant is a suitable person to be issued such license,
and that the applicant has good reason to fear injury to
his person or property, or for any other reason, including
the carrying of firearms for use in sport or target practice
only, subject to such restrictions expressed or authorized
under this section, unless the applicant:
(i) has, in any state or federal jurisdiction, been convicted
or adjudicated a youthful offender or delinquent child for
the commission of (a) a felony; (b) a misdemeanor
punishable by imprisonment for more than two years; (c)
a violent crime as defined in section 121; (d) a violation of
any law regulating the use, possession, ownership,
transfer, purchase, sale, lease, rental, receipt or
transportation of weapons or ammunition for which a
term of imprisonment may be imposed; or (e) a violation
of any law regulating the use, possession or sale of
controlled substances as defined in section 1 of chapter
94C;
(ii) has been confined to any hospital or institution for
C5 =
mental illness, unless the applicant submits with his
application an affidavit of a registered physician attesting
that such physician is familiar with the applicant's mental
illness and that in such physician's opinion the applicant
is not disabled by such an illness in a manner that should
prevent such applicant from possessing a firearm;
(iii) is or has been under treatment for or confinement for
drug addiction or habitual drunkenness, unless such
applicant is deemed to be cured of such condition by a
licensed physician, and such applicant may make
application for such license after the expiration of five
years from the date of such confinement or treatment and
upon presentment of an affidavit issued by such
physician stating that such physician knows the
applicant's history of treatment and that in such
physician's opinion the applicant is deemed cured;
(iv) is at the time of the application less than 21 years of
age;
(v) is an alien;
(vi) is currently subject to: (A) an order for suspension or
surrender issued pursuant to section 3B or 3C of chapter
209A or a similar order issued by another jurisdiction; or
(B) a permanent or temporary protection order issued
pursuant to chapter 209A or a similar order issued by
another jurisdiction; or
(vii) is currently the subject of an outstanding arrest
warrant in any state or federal jurisdiction.
(e) Within seven days of the receipt of a completed
C6
application for a license to carry or possess firearms, or
renewal of same, the licensing authority shall forward
one copy of the application and one copy of the
applicant's fingerprints to the colonel of state police, who
shall within 30 days advise the licensing authority, in
writing, of any disqualifying criminal record of the
applicant arising from within or without the
commonwealth and whether there is reason to believe
that the applicant is disqualified for any of the foregoing
reasons from possessing a license to carry or possess
firearms. In searching for any disqualifying history of the
appiicant, the colonel shall utilize, or cause to be utilized,
files maintained by the department of probation and
statewide and nationwide criminal justice, warrant and
protection order information systems and files including,
but not limited to, the National Instant Criminal
Background Check System. The colonel shall inquire of
the commissioner of the department of mental health
relative to whether the applicant is disqualified from
being so licensed. If the information available to the
colonel does not indicate that the possession of a firearm
or large capacity firearm by the applicant would be in
violation of state or federal law, he shall certify such fact,
in writing, to the licensing authority within said 30 day
period.
The licensing authority may also make inquiries
concerning the applicant to: (i) the executive director of
the criminal history systems board relative to any
disqualifying condition and records of purchases, sales,
rentals, leases and transfers of weapons or ammunition
concerning the applicant; (ii) the commissioner of
probation relative to any record contained within the
department of probation or the statewide domestic
3a 4
violence record keeping system concerning the applicant;
and (iii) the commissioner of the department of mental
health relative to whether the applicant is a suitable
person to possess firearms or is not a suitable person to
possess firearms. The director or commissioner to whom
the licensing authority makes such inquiry shall provide
prompt and full cooperation for that purpose in any ~
investigation of the applicant.
The licensing authority shall, within 40 days from the
date of application, either approve the application and
issue the license or deny the application and notify the
applicant of the reason for such denial in writing;
provided, however, that no such license shall be issued
unless the colonel has certified, in writing, that the
information available to him does not indicate that the
possession of a firearm or large capacity firearm by the
applicant would be in violation of state or federal law.
(f) A license issued under this section shall be revoked or
suspended by the licensing authority, or his designee,
upon the occurrence of any event that would have
disqualified the holder from being issued such license or -
from having such license renewed. A license may be
revoked or suspended by the licensing authority if it
appears that the holder is no longer a suitable person to
possess such license. Any revocation or suspension of a
license shall be in writing and shall state the reasons
therefor. Upon revocation or suspension, the licensing
authority shall take possession of such license and the
person whose license is so revoked or suspended shall
take all actions required under the provisions of section
129D. No appeal or post-judgment motion shall operate
to stay such revocation or suspension. Notices of
C8
revocation and suspension shall be forwarded to the
executive director of the criminal history systems board
and the commissioner of probation and shall be included
in the criminal justice information system. A revoked or
suspended license may be reinstated only upon the
termination of all disqualifying conditions, if any.
Any applicant or holder aggrieved by a denial, revocation
or suspension of a license, unless a hearing has
previously been held pursuant to chapter 209A, may,
within either 90 days after receiving notice of such denial,
revocation or suspension or within 90 days after the
expiration of the time limit during which the licensing
authority is required to respond to the applicant, file a
petition to obtain judicial review in the district court
having jurisdiction in the city or town wherein the
applicant filed for, or was issued, such license. A justice
of such court, after a hearing, may direct that a license be
issued or reinstated to the petitioner if such justice finds
that there was no reasonable ground for denying,
suspending or revoking such license and that the
petitioner is not prohibited by law from possessing same.
(g) A license shall be in a standard form provided by the
executive director of the criminal history systems board
_ and shall contain a license number which shall clearly
indicate whether such number identifies a Class A or
Class B license, the name, address, photograph,
fingerprint, place and date of birth, height, weight, hair
color, eye color and signature of the licensee. Such license
shall be marked “License to Carry Firearms” and shall
clearly indicate whether the license is Class A or Class B.
The application for such license shall be made in a
standard form provided by the executive director of the
C9
criminal history systems board, which form shall require
the applicant to affirmatively state under the pains and
penalties of perjury that such applicant is not disqualified
on any of the grounds enumerated above from being
issued such license.
(h) Any person who knowingly files an application
containing false information shall be punished by a fine
of not less than $500 nor more than $1,000 or by
imprisonment for not less than six months nor more than
two years in a house of correction, or by both such fine
and imprisonment.
(i) A license to carry or possess firearms shall be valid,
unless revoked or suspended, for a period of not more
than four years from the date of issue and shall expire on
the anniversary of the licensee's date of birth occurring
not less than three years but not more than four years
from the date of issue. Any renewal thereof shall expire
on the anniversary of the licensee's date of birth occurring
not less than three years but not more than four years
from the effective date of such license. Any license issued
to an applicant born on February 29 shall expire on
March 1. The fee for such application shall be $25, which
fee shall be payable to the licensing authority and shall
not be prorated or refunded in case of revocation or
denial; provided, however, that the licensing authority
shall retain one-half of such fee and the remaining
portion shall be deposited into the Firearms Record
Keeping Fund established under section 2SS of chapter
29.
Any person over the age of 70 shall be exempt from the
requirement of paying a renewal fee for a Class A or
C10
iaicaidlarelg
Class B license to carry.
(j)(1) No license shall be required for the carrying or
possession of a firearm known as a detonator and
commonly used on vehicles as a signaling and marking
device, when carried or possessed for such signaling or
marking purposes.
(2) No license to carry shall be required for the possession
of an unloaded large capacity rifle or shotgun or an
unloaded feeding device therefor by a veteran's
organization chartered by the Congress of the United
States, chartered by the commonwealth or recognized as
a nonprofit tax-exempt organization by the Internal
Revenue Service, or by the members of any such
organization when on official parade duty or during
ceremonial occasions. For purposes of this subparagraph,
an “unloaded large capacity rifle or shotgun” and an
“unloaded feeding device therefor” shall include any
large capacity rifle, shotgun or feeding device therefor
loaded with a blank cartridge or blank cartridges, so-
called, which contain no projectile within such blank or
blanks or within the bore or chamber of such large
capacity rifle or shotgun.
(k) Whoever knowingly issues a license in violation of
this section shall be punished by a fine of not less than
$500 nor more than $1,000 or by imprisonment for not
less than six months nor more than two years in a jail or
house of correction, or by both such fine and
imprisonment.
(1) The executive director of the criminal history systems
board shall send by first class mail to the holder of each
such license to carry firearms, a notice of the expiration of
such license not less than 90 days prior to such expiration
and shall enclose therein a form for the renewal of such
license. The taking of fingerprints shall not be required in
issuing the renewal of a license if the renewal applicant's
fingerprints are on file with the department of the state
police. Any licensee shall notify, in writing, the licensing
authority who issued said license, the chief of police into
whose jurisdiction the licensee moves and the executive
director of the criminal history systems board of any
change of address. Such notification shall be made by
certified mail within 30 days of its occurrence. Failure to
so notify shall be cause for revocation or suspension of
said license.
(m) Notwithstanding the provisions of section 10 of
chapter 269, any person in possession of a firearm, rifle or
shotgun whose license issued under this sectionis invalid
for the sole reason that it has expired, but who shall not
be disqualified from renewal upon application therefor
under this section, shall be subject to a civil fine of not less
than $500 nor more than $5,000 and the provisions of
section 10 of chapter 269 shall not apply; provided,
however, that the exemption from the provisions of said
section 10 of said chapter 269 provided herein shall not
apply if: (i) such license has been revoked or suspended,
unless such revocation or suspension was caused by
failure to give notice of a change of address as required
under this section; (ii) revocation or suspension of such
license is pending, unless such revocation or suspension
was caused by failure to give notice of a change of
address as required under this section; or (iii) an
application for renewal of such license has been denied.
Any law enforcement officer who discovers a person to
be in possession of a firearm, rifle or shotgun after such
person's license has expired, has been revoked or
suspended, solely for failure to give notice of a change of |
address, shall confiscate such firearm, rifle or shotgun
and the expired or suspended license then in possession
and such officer, shall forward such license to the
licensing authority by whom it was issued as soon as
practicable. Any confiscated weapon shall be returned to
the owner upon the renewal or reinstatement of such
expired or suspended license within one year of such
confiscation or may be otherwise disposed of in
accordance with the provisions of section 129D. The
provisions of this paragraph shall not apply if such
person has a valid license to carry firearms issued under
section 131F.
(n) Upon issuance of a license to carry or possess firearms
under this section, the licensing authority shall forward
a copy of such approved application and license to the
executive director of the criminal history systems board,
who shall inform the licensing authority forthwith of the
existence of any disqualifying condition discovered or
occurring subsequent to the issuance of a license under
this section.
(0) No person shall be issued a license to carry or possess
a machine gun in the commonwealth, except that a
licensing authority or the colonel of state police may issue
a machine gun license to:
(i) a firearm instructor certified by the criminal justice
training council for the sole purpose of firearm
instruction to police personnel;
C13
(ii) a bona fide collector of firearms upon application or
upon application for renewal of such license.
(p) The executive director of the criminal history systems
board shall promulgate regulations in accordance with
chapter 30A to establish criteria for persons who shall be
classified as bona fide collectors of firearms.
(q) Nothing in this section shall authorize the purchase,
possession or transfer of any weapon, ammunition or
feeding device that is, or in such manner that is,
prohibited by state or federal law.
(r) The secretary of the executive office of public safety or
his designee may promulgate regulations to carry out the
purposes of this section.
C14
Appendix D
Bibliography of Scholarly Research
Amar, Akhil Reed, “Second Thoughts: What the Right to
Bear Arms Really Means,” The New Republic, p. 242,
July 12, 1999.
Amar, Akhil Reed, “The Bill of Rights and the Fourteenth
Amendment,” 101 Yale L. J. 1131-1284, April 1992.
Amar, Akhil Reed, “The Bill of Rights as a Constitution,”
100 Yale L. J. 1131, 1990.
Cottrol, Robert J., (ed.), Gun Control and the Constitution:
Sources and Explorations on the Second Amendment, 3
vols., Garland Publishing, Inc., New York, N.Y., 1992,
and in single paperback vol., Garland Publishing,
Inc., New York, N.Y., 1994.
Cottrol, Robert J., with Diamond, Raymond T., “The Fifth
Auxiliary Right,” 104 Yale L. J. 995-1026, 1995.
Cottrol, Robert J., “Public Safety and the Right to Bear
Arms,” in D. Bodenhamer and J. Ely, After 200 Years:
The Bill of Rights in Modern America, Indiana Univ.
Press, Bloomington, Ind., 1993.
Cottrol, Robert J., “The Second Amendment: Toward an
Afro-Americanist Reconsideration,” 80 Georgetown L.
]. 309-361, 1991.
Cottrol, Robert J., “Never Intended to be Applied to the
White Population’: Firearms Regulation and Racial
D1
Disparity - The Redeemed South's Legacy to a
National Jurisprudence,” 70 Chi.-Kent L. Rev. 1307-
1335, 1995.
Denning, Brannon P. with Reynolds, Glenn Harlan, “It
Takes a Militia: A Communitarian Case for
Compulsory Arms Bearing,” 5 W. & M. Bill of Rights
]. 185-214, 1996.
Denning, Brannon P., “Can the Simple Cite Be Trusted?
Lower Court Interpretations of United States v. Miller
and the Second Amendment,” 26 Cumberland L. Rev.
961-1004, 1996.
Denning, Brannon P., “Palladium of Liberty? Causes and
Consequences of the Federalization of State Militias
in the Twentieth Century,” 21 Okla. City U. L. R. 191-
245, 1996.
Denning, Brannon P., “Professional Discourse, the Second
Amendment and the ‘Talking Head
Constitutionalism’ Counterrevolution: A Review
Essay,” 21 So. Ill. U. L. J. 227-253, 1997.
Halbrook, Stephen P., A Right to Bear Arms: State and
Federal Bills of Rights and Constitutional Guarantees
Greenwood Press, Inc., Westport, Conn., 1989.
Halbrook, Stephen P., Firearms Law Deskbook, Clark
Boardman Callaghan, Deerfield, IIl., 1995 and 1999
supp.;
Halbrook, Stephen P., That Every Man Be Armed: The
Evolution of a Constitutional Right, Univ. of New
D2
Mexico Press/The Independent Institute, Oakland,
Cal., 1984, reprinted by The Independent Institute,
1991.
Halbrook, Stephen P., with Kopel, David B., revised and
reprinted in Cottrol, Gun Control and the Constitution:
Sources and Explorations on the Second Amendment, pp.
360-374, “Tench Coxe and the Right to Keep and Bear
Arms, 1787-1823,” 7/2 W. & M. Bill of Rights J]. 347-
399, February 1999.
Halbrook, Stephen P., “Congress Interprets the Second
Amendment: Declarations by a Co-Equal Branch on
the Individual Right to Keep and Bear Arms,” 62/3
Tenn. L. Rev. 597-641, Spring 1995.
Halbrook, Stephen P., “Encroachments of the Crown on
the Liberty of the Subject: Pre-Revolutionary Origins
of the Second Amendment,” 15 U. of Dayton L. Rev.
91-124, Fall 1989.
Halbrook, Stephen P., “Firearms, the Fourth Amendment,
and Air Carrier Security,” 52/3 J. of Air Law & Comm.
585-680, Southern Methodist Univ. School of Law,
1987.
Halbrook, Stephen P., “Personal Security, Personal
Liberty, and ‘The Constitutional Right to Bear Arms’:
Visions of the Framers of the Fourteenth
Amendment,” 5/2 Constit. L. ]. 341-434, Seton Hall
Law School, Spring 1995.
Halbrook, Stephen P., “Rationing Firearms Purchases and
the Right to Keep Arms: Reflections on the Bill of
D3
Rights of Virginia, West Virginia, and the United
States,” 96 W. Va. L. Rev. 1-83, 1993.
Halbrook, Stephen P., “Second-Class Citizenship and the
Second Amendment in the District of Columbia,” 5/2
Geo. Mason Univ. Civ. Rights L. J. 105-178, Summer
1995.
Halbrook, Stephen P., “The Jurisprudence of the Second
and Fourteenth Amendment, Geo. Mason L. Rev. 1-69,
1981, reprinted in part in The Right to Keep and Bear
Arms, Report of the Subcommittee on the
Constitution of the Senate Committee on the
Judiciary, 97" Cong., 2d Sess., pp. 68-82, February
1982.
Halbrook, Stephen P., “The Right of the People or the
Power of the State: Bearing Arms, Arming Militias,
and the Second Amendment,” 26/1 Valparaiso U. L.
Rev. 131-207, Fall 1991.
Halbrook, Stephen P., “The Right to Bear Arms in Texas:
The Intent of the Framers of the Bill of Rights,” 41
Baylor L. Rev. 629-688, 1989.
Halbrook, Stephen P., “The Right to Bear Arms in the
First State Bills of Rights: Pennsylvania, North
Carolina, Vermont, and Massachusetts,” 10 Vt. L.
Rev. 255-320, 1985.
Halbrook, Stephen P., “The Right to Keep and Bear Arms
under the Second and Fourteenth Amendments: The
Framers' Intent and Supreme Court Jurisprudence,”
5/1 J. Firearms & Pub. Pol. 7-28, 1993.
D4
Halbrook, Stephen P., “The Second Amendment as a
Phenomenon of Classical Political Philosophy” in
Kates, Don B. , Jr., (ed.), Firearms and Violence, 1984.
Halbrook, Stephen P., “To Keep and Bear Their Private
Arms: The Adoption of the Second Amendment,
1787-1791,” 10/13 No. Ky. L. Rev. 13-39 (1982),
reprinted in 2 J. Firearms & Pub. Pol.
Halbrook, Stephen P., “Tort Liability for the
Manufacture, Sale and Ownership of Handguns,”
6/2 Hamline L. Rev. 351-382, 1983.
Halbrook, Stephen P., “What the Framers Intended: A
Linguistic Analysis of the Right to ‘Bear Arms’,” 49/1
Law & Contemp. Prob. 151-162, Winter 1986.
Hardy, David T. with Fields, William S., “The Militia and
the Constitution: A Legal History,” 136 Mil. L. Rev. 1,
1992.
Hardy, David T. with Stompoly, John, “Of Arms and the
Law,” 51 Chi.-Kent L. Rev. 62-114, 1974.
Hardy, David T., Origins and Development of the Second
Amendment, Blacksmith Corp., Chino Valley, Ariz.,
1986.
Hardy, David T., “Armed Citizens, Citizen Armies:
Toward a Jurisprudence of the Second Amendment,”
9 Harvard J. of L. & Pub. Pol. 559-638, 1986.
Hardy, David T., “Firearms Ownership and Regulation:
Tackling an Old Problem with Renewed Vigor,” 20
D5
W. & M. L. Rev. 235-290, 1978.
Hardy, David T., “Historical Bases of the Right to Keep
and Bear Arms,” The Right to Keep and Bear Arms,
Report of the Subcommittee on the Constitution of
the Senate Committee on the Judiciary, 97th Cong.,
2d Sess., pp. 45-67, February 1982.
Hardy, David T., “Legal Restrictions of Firearms
Ownership as an Answer to Violent Crime: What
Was the Question?” 6 Hamline L. Rev. 391-408, 1983.
Hardy, David T., “The Firearms Owners’ Protection Act:
A Historical and Legal Perspective,” 17 Cumberland
L. Rev. 585-682, 1987.
Hardy, David T., “The Second Amendment and the
Historiography of the Bill of Rights,” 4 J. of L. & Pol.
1-62, 1987.
Heath, J. Norman, “Exposing the Second Amendment:
Federal Preemption of State Militia Legislation,” 79
U. Det. Mercy L. Rev. 39 (2001).
Kates, Don B., Jr., (ed.), Restricting Handguns: The Liberal
Skeptics Speak Out, North River Press, Inc., Croton-
on-Hudson, N.Y., 1979.
Kates, Don B., Jr., (ed.), Why Handgun Bans Can't Work
Second Amendment Foundation, Bellevue, Wash.,
1982.
Kates, Don B., Jr., with Barnett, Randy E., “Under Fire:
The New Consensus on the Second Amendment,”
D6
45/4 Emory L. J. 1139-1259, Fall 1996.
Kates, Don B., Jr., with Kleck, Gary, The Great American
Gun Debate: Essays on Firearms & Violence, Pacific
Research Institute for Public Policy, San Francisco,
Cal., 1997.
Kates, Don B., Jr., (ed.), Firearms and Violence: Issues of
Public Policy Ballinger, Cambridge, Mass., 1984.
Kates, Don B., Jr., (ed.), Symposium: Gun Control, 49/1 L.
& Contemp. Prob. 1-267, Winter 1986.
Kates, Don B., Jr., (ed.), “Firearms and Firearms
Regulation: Old Premises, New Research (A
Symposium),” 5 L. & Pol. Quart., 1983.
Kates, Don B., Jr., author, “The Second Amendment: A
Dialogue,” id. at 143-150.
Kates, Don B., Jr., Guns, Murders, and the Constitution: A
Realistic Assessment of Gun Control, Pacific Research
Institute for Public Policy, San Francisco, Calif., 1990.
Kates, Don B., Jr., with Lattimer, John K. and Boen, James
R., “Problematic Arguments for Banning Handguns,”
in Kates, Don B., Jr., and Kleck, Gary, The Great
American Gun Debate: Essays on Firearms & Violence,
Pacific Research Institute for Public Policy, San
Francisco, Cal., pp. 31-49, 1997.
Kates, Don B., Jr., with Polsby, Daniel D., “Of Genocide
and Disarmament,” 86/1 J. of Crim. L. & Criminology
247-256, Fall 1995.
D7
Kates, Don B., Jr., with Schaffer, Henry E.; Latimer, John
K.; Murray, George B.; and Cassem, Edwin H., “Guns
and Public Health: Epidemic of Violence or Pandemic
of Propaganda?” 62/3 Tenn. L. Rev. 513-596, Spring
1995.
Kates, Don B., Jr., “Bigotry, Symbolism and Ideology in
the Battle over Gun Control,” 1992 Pub. Int'l L. Rev.
31-46, 1992.
Kates, Don B., Jr., “Gun Control: Separating Reality from
Symbolism,” 20 J. of Contemp. L. 353-379, 1994.
Kates, Don B., Jr., “Handgun Banning in Light of the
Prohibition Experience,” in Don B. Kates, Jr. (ed.),
Firearms and Violence, pp. 139-154, 1984.
Kates, Don B., Jr.,“ Handgun Prohibition and the Original
Meaning of the Second Amendment,” 82 Mich. L.
Rev. 203-273, 1983.
Kates, Don B., Jr., “Minimalist Interpretation of the
Second Amendment” in Hickok, E. (ed.), The Bill of
Rights: Original Meaning and Current Understanding,
Univ. of Virginia Press, Charlottesville, Va., 1991.
Kates, Don B., Jr., “On Genocide and Disarmament,” 86
]. of Crim. L. & Criminology 247, 1995.
Kates, Don B., Jr., “Policy Lessons from Recent Gun
Control Research,” 49 L. & Contemp. Prob. 35-62, 1986.
Kates, Don B., Jr., “Reflections on the Relevancy of Gun
Control,” 13 Crim. L. Bull. 119, 1977.
D8
Kates, Don B., Jr., with Lattimer, John K. and Boen, James
R., “Sagecraft: Bias and Mendacity in The Public
Health Literature on Gun Usage,” in Kates, Don B.,
Jr., and Kleck, Gary, The Great American Gun Debate:
Essays on Firearms & Violence, Pacific Research
Institute for Public Policy, San Francisco, Cal., pp.
125-147, 1997.
Kates, Don B., Jr., “Some Remarks on the Prohibition of
Handguns,” 23 St. Louis U. L. J. 12, 1978.
Kates, Don B., Jr., “The Battle Over Gun Control,” 84 Pub.
Int. 42, 1986, reprinted in 3 J. Firearms & Pub. Pol.
Kates, Don B., Jr., “The Second Amendment and the
Ideology of Self-Protection,” 9 Constit. Comment. 87-
104, February 1992.
Kates, Don B., Jr., “The Value of Civilian Handgun
Possession as a Deterrent to Crime or a Defense
Against Crime,” 18 Amer. J. of Crim. L. 113-167, 1991.
Kleck, Gary with Bordua, David, “The Assumptions of
Gun Control,” in Kates, Don B. (ed.) Firearms and
Violence: Issues of Public Policy, Ballinger, Cambridge,
Mass., 1984, reprinted in Library of Congress,
Congressional Research Service, Federal Regulation of
Firearms: A Report Prepared for the Use of the Committee
on the Judiciary, United States Senate, 97th Cong., 2d
Sess., Committee Print, 1982.
Kleck, Gary with Gertz, Marc, “Armed Resistance to
Crime: The Prevalence and Nature of Self-Defense
with a Gun,” 86/1 J. of Crim. L. & Crim. 150-187, Fall
D9
1995.
Kleck, Gary with Patterson, E. Britt, “The Impact of Gun
Control and Gun Ownershiv Levels on Violence
Rates,” 9 J. of Quantit. Crim. 249-287, 1993.
Kleck, Gary, Point Blank: Guns and Violence in America,
Aldine de Gruyter, New York, 1991.
Kleck, Gary, with Kates, Don B., Jr., The Great American
Gun Debate: Essays on Firearms & Violence, Pacific
Research Institute for Public Policy, San Francisco,
Cal., 1997.
Kleck, Gary, “Crime Control Through the Private Use of
Armed Force,” 35/1 Soc. Prob. 1-21, February 1988.
Kleck, Gary, “Guns and Violence: An Interpretive Review
of the Field,” 1/1 Soc. Path. 12-47, January 1995.
Kleck, Gary, “Media Bias: Gun Control, Assault
Weapons, Cop-Killer Bullets, the Goetz Case, and
Other Alarms in the Night,” in Kates, Don B., Jr., and
Kleck, Gary, The Great American Gun Debate: Essays on
Firearms & Violence, Pacific Research Institute for
Public Policy, San Francisco, Cal., pp. 54-92, 1997.
Kleck, Gary, “The Factual Foundation for Certain Key
Assumptions of Gun Control,” 5 L. & Pol. Quart. 271-
293, 1983.
Kleck, Gary, “The Frequency of Defensive Gun Use,” pp.
152-191 and “Keeping, Carrying, and Shooting Guns
for Self Protection,” pp. 194-222, and “The Nature of
D10
Defensive Gun Use and the Deterrence and
Displacement of Crime,” in Kates, Don B., Jr., and
Kleck, Gary, The Great American Gun Debate: Essays on
Firearms & Violence, Pacific Research Institute for
Public Policy, San Francisco, Cal., pp. 223-268, 1997.
Kleck, Gary, “The Relationship Between Gun Ownership
Levels and Rates of Violence in the United States,” in
Kates, Don B., Jr. (ed.), Firearms and Violence: Issues of
Public Policy, Ballinger, Cambridge, Mass., pp. 99-132,
1984, reprinted in Library of Congress, Congressional
Research Service, Federal Regulation of Firearms: A
Report Prepared for. the Use of the Committee on the
Judiciary, United States Senate, 97th Cong., 2d Sess.,
Committee Print, 1982.
Kopel, David B. with Blackman, Paul H., “Can Soldiers
Be Peace Officers? The Waco Disaster and the
Militarization of American Law Enforcement,” 30
Akron L. Rev. 619-659, 1997.
Kopel, David B. with Blackman, Paul H., “The
Unwarranted Warrant: The Waco Search Warrant
and the Decline of the Fourth Amendment,” 18/1
Hamline J. of L. & Pol. 1-51, Fall 1996.
Kopel, David B. with Cramer, Clayton E. and Hattrup,
Scott G., “A Tale of Three Cities: The Right to Keep
and Bear Arms in State Supreme Court Cases,” 68
Temple L. Rev. 1177-1240, 1995, reprinted in 8 J.
Firearms & Pub. Pol. 109-203, Fall 1996.
Kopel, David B. with Gardiner, Richard E., “The Sullivan
Principles: Protecting the Second Amendment from
D11
Civil Abuse,” 19 Seton Hall Legis. ]. 737-775, 1995.
Kopel, David B. with _ Little, Christopher C.,
“Communitarians, Neorepublicans, and Guns:
Assessing the Case for Firearms Prohibition,” 56/2
Ma. L. Rev. 438-554, 1997.
Kopel, David B. with Olson, Joseph, “Preventing a Reign
of Terror: Civil Liberties Implications of Terrorism
Legislation,’ 21 Okla. City U. L. Rev. 247-347,
Summer/Fall 1996.
Kopel, David B. with Reynolds, Glenn Harlan, “Taking
Federalism Seriously: Lopez and the Partial-Birth
Abortion Ban,” 30/1 Conn. L. Rev. 59-116, Fall 1997.
Kopel, David B., Gun Control in Great Britain: Saving Lives
or Constricting Liberty, 1992.
Kopel, David B., Guns: Who Should Have Them?,
Prometheus Books, Buffalo, N.Y., 1995.
Kopel, David B., The Samurai, the Mountie, and the Cowboy,
Prometheus Books, Buffalo, N.Y., 1992.
Kopel, David B., with Blackman, Paul H., No More Wacos:
What's Wrong with Federal Law Enforcement and How to
Fix It, Prometheus Books, Amherst, N.Y., 1997.
Kopel, David B., “Canadian Gun Control: Should the
United States Look North for a Solution to Its
Firearms Problem?” 5 Temple Int'l & Comp. L. J. 1-50,
1991.
D12
Cc
Kopel, David B., “Comprehensive Bibliography of the
Second Amendment in Law Reviews,” 11 J. Firearms
& Pub. Pol. 5-45, Fall 1999.
Kopel, David B., “It Isn't About Duck Hunting: The
British Origins of the Right to Arms,” 93 Mich. L. Rev.
1333-1362, 1995.
Kopel, David B., “Japanese Gun Control,” 2 Asia Pac. L.
Rev. 26-52, 1993.
Kopel, David B., “Lethal Laws,” 15 N.Y. L. Sch. J. of Int'l
& Comp. L. 355-398, 1995.
Kopel, David B., “Peril or Protection? The Risks and
Benefits of Handgun Prohibition,” 12 St. Louis U. Pub.
i L. Rev. 285-359, 1993.
Kopel, David B., “Rational Basis Analysis of ‘Assault
Weapon’ Prohibition,” 20 J. of Contemp. L. 381-417
(1994).
Kopel, David B., “The Ideology of Gun Ownership and
Gun Control in the United States,” 18 Quart. J. of
Ideol. 3-34, June 1995.
Kopel, David B., “The Second Amendment in the
Nineteenth Century,” 1998 Brig. Young U. L. Rev.
1359-1524, 1998.
Kopel, David B., “Why Gun Waiting Periods Threaten
Public Safety,” 4/1 J. Firearms-& Pub. Pol. 1-72,
Summer 1992.
D13
Levinson, Sanford, “Democratic Politics and Gun
Control,” 1 Reconstruction 137, 1992.
Levinson, Sanford, “Is the Second Amendment Finally
Becoming Recognized as Part of the Constitution?
Voices from the Courts,” Brig. Young U. L. Rev. 127,
1998.
Levinson, Sanford, “The Embarrassing Second
Amendment,” 99 Yale L. J. 637-659, December 1989,
reprinted in Cottrol, Gun Control 137-159, reprinted
in 3 J. Firearms & Pub. Pol.
Lund, Nelson, “The Past and Future of the Individual's
Right to Arms,” George Mason University School of
Law Law and Economics Working Paper No. 95-11,
GMU, Arlington, Va., 1995, published in 31/1 Ga. L.
Rev. 1-76, Fall 1996.
Lund, Nelson, “The Second Amendment, Political
Liberty, and the Right to Self-Preservation,” 39/1 Ala.
L. Rev. 103-130, 1987.
Malcolm, Joyce Lee, Disarmed: The Loss of the Right to Bear
Arms in Restoration England, The Mary Ingraham
Bunting Institute of Radcliffe College, 1980.
Malcolm, Joyce Lee, Review, 54 Geo. Washington U. L. Rev.
582, 1986.
Malcolm, Joyce Lee, To Keep and Bear Arms: The Origins of
an Anglo-American Right, Harvard Univ. Press,
Cambridge, Mass., 1994.
a ME I ONE
ee ake ee
Malcolm, Joyce Lee, “Gun Control and the Constitution:
Sources and Explorations of the Second
Amendment,” 62/3 Tenn. L. Rev. 813-821, Spring,
1995.
Malcolm, Joyce Lee, “The Right of the People to Keep and
Bear Arms: The Common Law Tradition,” 10
Hastings Constit. L. Quart. 285-314, Winter, 1983,
reprinted in Robert J. Cottrol (ed.), Gun Control and
the Constitution: Sources and Explorations on the Second
Amendment, Garland Publishing, Inc., New York,
N.Y., pp. 227-256, 1994, (hereinafter, “Cottrol, Gun
Control”).
Malcolm, Joyce Lee, “The Role of the Militia in the
Development of the Englishman's Right to be Armed
- Clarifying the Legacy,” 5/1 J. Firearms & Pub. Pol.,
139-151, 1993.
Tribe, Laurence H., “The Second Amendment and state
sovereignty,” 1 American Constitu tional Law,
Foundation Press, New York, N.Y., 3d ed., 894-903,
2000.
van Alstyne, William, “The Second Amendment and the
Personal Right to Arms,” 43/6 Duke L. J. 1236-1255,
April 1994.
D15
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.