Appendix — Silveira v. Lockyer

1A

D6 bed OR aNe Cheeta ke Se UNE Me ake OER oe Boe ce

GATHERING THE DEAD AND WOUNDED

Harpers, May 10, 1873

(After the Colfax Massacre, before US v. Cruikshank - RL)

APPENDIX TO PETITION FOR CERTIORARI

All opinions now are officially reported.

312 F.3d 1052 & 328 F.3d 567.

ORDER OF THE US COURT OF APPEALS, MAY 6,

2003, DENYING REHEARING EN BANC:

SIX DISSENTS, AND FOUR OPINIONS

SILVEIRA v. LOCKYER,

328 F.3d 567 (9 Cir. May 6, 2003)

SEAN SILVEIRA; et al, Plaintiffs-Appellants,

v. ,

BILL LOCKYER, et al, Defendants-Appellees.

No. 01-15098

ORDER

Filed May 6, 2003

Before: Stephen Reinhardt, Frank J. Magill,* and

Raymond C. Fisher, Circuit Judges.

Dissents by Judges Pregerson, Kozinski, Kleinfeld,

and Gould.

*The Honorable Frank J. Magill, Senior Circuit Judge,

Eighth Circuit, sitting by designation.

A majority of the panel has voted to deny the petition

for rehearing en banc. The full court was advised of

the petition for rehearing en banc. An active judge

requested a vote on whether to rehear the matter en

banc. The matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en

banc reconsideration. FED. R. APP. P. 35.

The petition for rehearing en banc is denied.

PREGERSON, Circuit Judge, dissenting from the

denial of rehearing en banc:

I agree with the panel’s decision to uphold California’s

Assault Weapons Control Act. But I part from the

panel’s Second Amendment analysis. The right to keep

and bear arms is in no way absolute; it is subject to

reasonable restrictions such as those embedded in the

statute the California legislature enacted. However,

the panel misses the mark by interpreting the Second

Amendment right to keep and bear arms as a

collective right, rather than as an individual right.

Because the panel’s’ decision abrogates a

constitutional right, this case should have been

reheard en banc. .

KOZINSKI, Circuit Judge, dissenting from denial of

rehearing en banc:

Judges know very well how to read the Constitution

broadly when they are sympathetic to the right being

asserted. We have held, without much ado, that

"speech, or . . . the press" also means the Internet, see

Reno v. ACLU, 521 U.S. 844 (1997), and that "persons,

houses, papers, and effects" also means public

telephone booths, see Katz v. United States, 389 U.S.

347 (1967). When a particular right comports

3A

especially well with our notions of good social

policy, we build magnificent legal edifices on elliptical

constitutional phrases—or even the white spaces

between lines of constitutional text. See, e.g.,

Compassion in Dying v. Washington, 79 F.3d 790 (9th

Cir. 1996) (en banc), rev’d sub nom. Washington v.

Glucksberg, 521 U.S. 702 (1997). But, as the panel

-amply demonstrates, when we're none too keen on a

particular constitutional guarantee, we can be equally

ingenious in burying language that is incontrovertibly

there.

It is wrong to use some constitutional provisions as

springboards for major social change while treating

others like senile relatives to be cooped up in a

nursing home until they quit annoying us. As

guardians of the Constitution, we must be consistent

in interpreting its provisions. If we adopt a

jurisprudence sympathetic to individual rights, we

must give broad compass to all constitutional

provisions that protect individuals from tyranny. If we

take a more static approach, we must give all such

provisions narrow scope. Expanding some _ to

gargantuan proportions while discarding others like a

crumpled gum wrapper is not faithfully applying the

Constitution; it’s using our power as federal judges to

constitutionalize our personal preferences.

The able judges of the panel majority are usually very

sympathetic to individual rights, but they have

succumbed to the temptation to pick and choose. Had

they brought the same generous approach to the

Second Amendment that they routinely bring to the

First, Fourth and selected portions of the Fifth, they

would have had no trouble finding an individual right

to bear arms. Indeed, to conclude otherwise, they had

to ignore binding precedent. United States v. Miller,

307 U.S. 174 (1939), did not hold that the defendants

lacked standing to raise a Second Amendment

defense, even though the government argued the

collective rights theory in its brief. See Kleinfeld

Dissent at 6011-12; see also Brannon P. Denning &

4A

Glenn H. Reynolds, Telling Miller’s Tale: A

Reply to David Yassky, 65 Law & Contemp. Probs.

113, 117-18 (2002). The Supreme Court reached the

Second Amendment claim and rejected it on the merits

after finding no evidence that Miller’s weapon—a

sawed-off shotgun—was reasonably susceptible to

militia use. See Miller, 307 U.S. at 178. We are bound

not only by the outcome of Miller but also by its

rationale. If Miller’s claim was dead on arrival because

it was raised by a person rather than a state, why

would the Court have bothered discussing whether a

sawed-off shotgun was suitable for militia use? The

panel majority not only.ignores Miller's test; it renders

most of the opinion wholly superfluous. As an inferior

court, we may not tell the Supreme Court it was out to

lunch when it last visited a constitutional provision.

The majority falls prey to the delusion—popular in

some circles—that ordinary people are too careless

and stupid to own guns, and we would be far better off

leaving all weapons in the hands of professionals on

the government payroll. But the simple truth—born of

experience—is that tyranny thrives best where

government need not fear the wrath of an armed

people. Our own sorry history bears this out:

Disarmament was the tool of choice for subjugating

both slaves and free blacks in the South. In Florida,

patrols searched blacks’ homes for weapons,

confiscated those found and punished their owners

without judicial process. See Robert J. Cottrol &

Raymond T. Diamond, The Second Amendment:

Toward an Afro-Americanist Reconsideration, 80 Geo.

L.J. 309, 338 (1991). In the North, by contrast, blacks

exercised their right to bear arms to defend against

racial mob violence. Id. at 341-42. As Chief Justice

Taney well appreciated, the institution of slavery

required a class of people who lacked the means to

resist. See Dred Scott v. Sandford, 60 U.S. (19 How.)

393, 417 (1857) (finding black citizenship unthinkable

because it would give blacks the right to "keep and

carry arms wherever they went"). A revolt by Nat

SA

Turner and a few dozen other armed blacks could

be put down without much difficulty; one by four

million armed blacks would have meant big trouble.

All too many of the other great tragedies of history—

Stalin’s atrocities, the killing fields of Cambodia, the

Holocaust, to name but a few—were perpetrated by

armed troops against unarmed populations. Many

could well have been avoided or mitigated, had the

perpetrators known their intended victims were

equipped with a rifle and twenty bullets apiece, as the

Militia Act required here. See Kleinfeld Dissent at

9997-99. If a few hundred Jewish fighters in the

Warsaw Ghetto could hold off the Wehrmacht for

~ almost a month with only a handful of weapons, six

million Jews armed with rifles could not so easily have

been herded into cattle cars.

My excellent colleagues have forgotten these bitter

lessons of history. The prospect of tyranny may not

grab the headlines the way vivid stories of gun crime

routinely do. But few saw the Third Reich coming until

it was too late. The Second Amendment is a doomsday

provision, one designed for those exceptionally rare

circumstances where all other rights have failed—

where the government refuses to stand for reelection

and silences those who protest; where courts have lost

the courage to oppose, or can find no one to enforce

their decrees. However improbable these contingencies

may seem today, facing them unprepared is a mistake

a free people get to make only once.

Fortunately, the Framers were wise enough to

entrench the right of the people to keep and bear arms

within our constitutional structure. The purpose and

importance of that right was still fresh in their minds,

and they spelled it out clearly so it would not be

forgotten. Despite the panel’s mighty struggle to erase

these words, they remain, and the people themselves

can read what they say plainly enough:

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.

6A

The sheer ponderousness of the panel’s opinion—

the mountain of verbiage it must deploy to explain

away these fourteen short words of constitutional

text—refutes its thesis far more convincingly than

anything I might say. The panel’s labored effort to

smother the Second Amendment by sheer body weight

has all the grace of a sumo wrestler trying to kill a

rattlesnake by sitting on it—and is just as likely to

succeed.

KLEINFELD, Circuit Judge, with whom Circuit

Judges KOZINSKI, O’SCANNLAIN, and T. B. NELSON

join, dissenting from denial of rehearing en banc:

I respectfully dissent from our order denying rehearing

en banc. In so doing, I am expressing agreement with

my colleague Judge Gould’s special concurrence in

Nordyke v. King,' and with the Fifth Circuit’s opinion

in United States v. Emerson,? both taking the position

that the Second Amendment secures an individual,

and not collective, right to keep and bear arms.

The panel opinion holds that the Second Amendment

"imposes no limitation on California’s [or any other

state’s] ability to enact legislation regulating or

prohibiting the possession or use of firearms"? and

"does not confer an individual right to own or possess

arms." The panel opinion erases the Second

Amendment from our Constitution as effectively as it

can, by holding that no individual even has standing

to challenge any law restricting firearm possession or

use. This means that an individual cannot even get a

case into court to raise the question. The panel’s

theory is that "the Second Amendment affords only a

collective right," an odd deviation from the

individualist philosophy of our Founders. The panel

- strikes a novel blow in favor of states’ rights, opining

1319 F.3d 1185 (9th Cir. 2003).

2 270 F.3d 203 (Sth Cir. 2001).

3 Silveira v. Lockyer, 312 F.3d 1052, 1087 (9th Cir. 2002).

4 Id. at 1056.

5 Id. at 1092.

1A

that "the amendment was not adopted to afford

rights to individuals with respect to private gun

ownership or possession," but was instead “adopted

to ensure that effective state militias would be

maintained, thus preserving the people’s right to bear

arms."7 It is not clear from the opinion whom the

States would sue or what such a suit would claim

were they to try to. enforce this right. The panel’s

protection of what it calls the “people’s right to bear

arms" protects that "right" in the same fictional sense

as the "people’s" rights are protected in a "people’s

democratic republic."

Our circuit law regarding the Second Amendment

squarely conflicts with that of the Fifth Circuit.® It is

inconsistent with decisions of the Supreme Court that

have construed the Second Amendment and phrases

within it.2 Our circuit has effectively repealed the

Second Amendment without the democratic protection

of the amendment process, which Article V requires. 1°

The panel decision purports to undertake historical

analysis. Historical context has its uses in

understanding the context and purposes of any law,

constitutional or legislative,41 but like legislative

history, the use of history is subject to abuse. Where

the historical scholarship is partial and tendentious,

relying on it becomes like relying on legislative history:

© Id. at 1087.

7 Id. at 1086.

8 See United States v. Emerson, 270 F.3d 203 (5th Cir.

2001).

9 See United States v. Verdugo-Urquidez, 494 U.S. 259

(1990), United States v. Miller, 307 U.S. 174 (1939).

10 U.S. Const. art. V (describing amendment procedure}.

1! See Portland 76/Auto Truck Plaza v. Union Oil, 153 #.3d

938, 944 (9th Cir. 1998) (“The statute and not the legisiative

history tells us what solution Congress adopted for the

problem, but the iegislative history is useful to determine

what the problem was.”).

"entering a crowded cocktail party and looking

over the heads of the guests for one’s friends."!2

Much of the panel decision purports to be an attempt

to figure out what the word "militia" means in the

Second Amendment. But the panel’s failure to cite the

contemporaneous implementing!* statute defining the

term demonstrates the tendentiousness of its analysis.

The statute defining the militia, which in substance

provides that the "militia" consists of all adult male

citizens without regard to whether they are in any

state or federal military service, has _ been

subsequently altered to expand its coverage, but the

federal militia statute remains in effect.'4¢ Besides

overlooking the statute, the panel somehow failed to

notice that the United States Supreme Court, in

United States v. Miller,15 held that the term "militia" in

the Second Amendment meant, and means, "all males

physically capable of acting in concert for the common

defense." We are an inferior court, bound by this

holding of the Supreme Court.

The panel opinion swims against a rising tide of legal

scholarship to the contrary, relying heavily on a single

law review article that claims "keep and bear" means

the same thing as "bear," which itself means only to

Carry arms as part of a military unit.!6

About twenty percent of the American population,

those who live in the Ninth Circuit, have lost one of

the ten amendments in the Bill of Rights. And, the

methodology used to take away the right threatens the

rest of the Constitution. The most extraordinary step

12 Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J.,

concurring) (paraphrasing Judge Harold Leventhal).

13 Congress voted to send the Bill of Rights to the states in

September 1789, and it was ratified by the states on

December 15, 1791. The Militia Act was enacted in 1792.

14 See Militia Act, 1 Stat. 271 (1792); 10 U.S.C. § 311.

15 307 U.S. 174, 179 (1939).

16 Silveira, 312 F.3d at 1074 (citing Michael C. Dorf, What

Does the Second Amendment Mean Today?, 76 Chi.-Kent L.

Rev 291, 294 (2000)).

9A

taken by the panel opinion is to read the

frequently used Constitutional phrase, "the people," as

conferring rights only upon collectives, not

individuals. There is no logical boundary to this

misreading, so it threatens all the rights the

Constitution guarantees to "the people," including

those having nothing to do with guns. I cannot

imagine the judges on the panel similarly repealing

the Fourth Amendment’s protection of the right of "the

people” to be secure against unreasonable searches

and seizures,!7 or the right of "the people" to freedom

of assembly,!® but times and personnel change, so

that this right and_all the other rights of "the people"

are jeopardized by planting this weed in our

Constitutional garden.

I,

The Constitution with its amendments is the supreme

law of this land, not historical artifact, so we must

read it, determine what it means, and follow it,

regardless of our policy preferences. The Second

Amendment to the Constitution provides: "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."!9 To figure out what the

Second Amendment means, we should apply standard

and commonly accepted rules of Statutory and

constitutional construction, such as the rule that all

the words must ordinarily be given force. The forceful

language in the operative language in the Amendment,

"the right of the people to keep and bear Arms, shall

not be infringed," is quite clear, as will be set out

below. The statement of the purpose preceding these

operative words, "A well regulated Militia, being

necessary to the security of a free State," makes the

conclusion unavoidable, once "militia" is read

’

17 U.S. Const. amend. IV.

18 U.S. Const. amend. I.

19 U.S. Const. amend. II.

104

seriously, that the operative words

guarantee an individual right.

The panel’s strongest argument (but not strong

enough) is that the word "bear" in the phrase "bear

Arms" "customarily relates to a military function," so

that when not acting in a military capacity, "the

people" have no right to bear Arms.?2° The military

meaning is certainly among the meanings of "bear," as

is "large, heavily built, furry, four-legged mammal,"

and "investor pessimistic about the stock market." But

the primary meaning of "bear" is "to carry,"2! as when

we arrive at our host’s home "bearing gifts" and arrive

at the airport "bearing burdens." The only way to limit

"bear" to its military meaning is to misread "militia" in

the preamble as though it meant regulars in a

standing military service, which, as shall be shown

below, it emphatically does not.

Of course one can cherry-pick dictionary definitions,

just as one can carefully select from legislative and

other history. The panel opinion cites a law review

article citing the Oxford English Dictionary, and

asserts that the OED "defines ‘to bear arms’ as ‘to

serve as a soldier, do military service, fight.’ "22 This is

correct as far as it goes,23 but it is also misleading,

because the OED says that the "main sense"?* of

"bear" is "to carry."25 True, sense 6(a) of "bear" in the

OED is "To carry about with one, or wear, ensigns of

20 Silveira, 312 F.3d at 1072-75.

21 See 2 Oxford English Dictionary 20 (J.A. Simpson &

E.S.C. Weiner, eds. 2d ed. 1989).

22 Silveira, 312 F.3d at 1073 (citing David Yassky, The

Second Amendment: Structure, History and Constitutional

Change, 99 Mich. L. Rev. 588, 619 (2000) (internal citation

omitted)).

23 Oxford English Dictionary 634 (J.A. Simpson & E.S.C.

Weiner, eds. 2d ed. 1989).

24 The Oxford English Dictionary divides meanings broadly

into “senses.” See id. at xxxviii - xxix.

25 2 Oxford English Dictionary 20 (J.A. Simpson & E.S.C.

Weiner, eds. 2d ed. 1989).

11A

office, weapons of offence or defence,"26 and the

OED lists among the fourth sense of "arms," "to bear

arms" — marked as figurative by the editors — defined

as "to serve as a soldier, do military service, fight."

Certainly the phrase has often been used this way, in

judicial opinions and elsewhere. But that does not

vitiate the "main sense” of "bear": to carry. The word

was used the same way when Congress adopted the

Second Amendment. Webster’s 1828 Dictionary offers

"To support" and "To carry" as the first and second

meanings of "bear."27 If we used the panel’s

methodology, taking each word according a right in

the Bill of Rights in the narrowest possible sense, then

we would limit the freedom of "speech" protected by

the First Amendment to oral declamations. The right

of the people to "bear" arms. means, taking the word in

its ordinary sense both then and now, the right of the

people to "carry" arms, subject as all constitutional

rights are to reasonable regulation and restrictions.28

The word "keep" poses a much more difficult problem

for those who, like the panel, favor judicial repeal of

the Second Amendment. While "bear often has a

military meaning, "keep" does not. For centuries, the

primary meaning of "keep" has been "to retain

possession of."29 There is only one straightforward

interpretation of "keep" in the Second Amendment,

and that is that "the people" have the right to retain

possession of arms, subject to reasonable regulation

and restrictions.

26 Id. at 21.

27Webster’s 1828 Dictionary, available at

www.cbtministries.org/resources/webster1828.htm (last

visited April 21, 2003).

28 See, e.g., Ward v. Rock Against Racism, 491 U.S. 781,

791 (1989)(permitting reasonable restrictions on exercise of

- Tight of free speech).

29 See The American Heritage Dictionary 698 (2d ed.

1982).

12K

The panel claims that "[t]he reason why that

term was included in the amendment is not clear."%°

Of course it is not clear to those who have chosen in

advance to evade the ordinary meaning of the word.

Professing mystification by the meaning of "keep," the

panel does a very creative dance around the Founders’

language, arguing that because "bear" means only to

bear in military service, and "keep" is used in the

same "unitary" phrase, "keep" must also be limited to

military service.3! Thus, "keep" means no more than

"bear," that is to possess in the course of rendering

service in a state militia. The dancers eventually trip

up, though, because it is "a cardinal principle of

statutory construction that we must give effect, if

possible, to every clause and word of a statute."32 The

word "keep" must refer to something different from the

word "bear." We, the people, are entitled by its

separate meaning and the word "and" to have it

construed as giving us a right separate from and

additional to the right attached to the word "bear."

Calling the phrase "unitary" is just a fancy way of

depriving the word "keep" of any force. One might as

well say that if someone has a right to keep and drive

a car, and dies, his estate loses the right to keep the

car because he can no longer drive it.

Colonial statutes, as well as those more recent, used

"keep" and "bear" to mean two different things. These

statutory usages show that before, during, and after

Congress adopted the Second Amendment, "keep" and

"bear" were not used in a "unitary" sense, nor was

"keep" limited to militia service. For instance, seamen

and others exempt from militia service were

30 Silveira, 312 F.3d at 1074.

31 Id. at 1074.

32 Williams v. Taylor, 529 U.S. 362, 404 (2000) (internal

citations and quotations omitted).

134

sometimes nevertheless required to "keep"

arms.%3 Contemporary legal usage in statutes, as well

as the plain meaning of the words, shows that law

directed at the right or duty to "keep" arms was

distinct from duties to "bear" arms in militia service.

Il.

The most important phrase for determining the scope

of the operative words of the Second Amendment (and

the most troublesome to the panel) is "the right of the

people." The operative words of the amendment

syntactically protect the right of "the people," not the

"militia," to keep and bear arms. Despite the panel’s

extensive discussion of "keep," "bear," and the

preamble, it simply skips over "the right of the people”

and attempts no direct analysis of the phrase.

Marbury v. Madison held that "It cannot be presumed

that any clause in the Constitution is intended to be

without effect; and, therefore, such a construction is

inadmissible, unless the words require it."34 Yet the

panel’s conclusion that the Second Amendment

creates no individual rights whatsoever, only a

“collective right" apparently not enforceable by

anyone, requires that this clause establishing a "right

of the people" be read as though it were "without

effect."

The "collective rights" interpretation of the Second

Amendment, that it confers a "right" only on state

governments with respect to state militias, is a logical

and verbal impossibility in light of the phrase "right of

the people." As our Constitution is written,

governments have "powers" but no "rights." People

have both "rights" and "powers." And the Bill of Rights

carefully distinguishes between the powers of the

States and the rights of the people, never speaking of

33 See Don B. Kates, Handgun Prohibition and the Original

Meaning of the Second Amendment, 82 Mich. L. Rev. 204

(1983).

34 Marbury v. Madison, 5 U.S. 137, 174 ( 1803).

144

rights of the people when it means powers of the

states.

The Tenth Amendment expressly draws _ both

distinctions, between powers and rights, and between

powers of state governments and powers of the people:

"The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people."35

The Tenth Amendment reserves "powers," not "rights,"

to the state governments, and the Ninth preserves

"rights" for "the people." By use of the word "or," the

Tenth Amendment makes it crystal clear that "the

people" are distinct from the state governments and

hold some reserved powers that the state governments

do not. The Ninth Amendment, speaking of "rights"

rather than "powers," prohibits a construction that

- would deny unenumerated "rights" to "the people."

Without it, the inference from an express listing of

rights might have been that there are no others. The

Ninth Amendment does not prohibit such an expressio

untus est exclusio alterius inference with respect to the

state governments, and the Tenth Amendment

carefully avoids sorting out which powers are reserved

to the states, and which to the people.

The Fifth Circuit conducts this same analysis in

United States v. Emerson.* Emerson points out that

the Constitution describes what governments exercise

as "powers" or "authority."37 The "legislative Powers"

are vested in Congress and the "executive Power" is

vested in the President. A "right," however, is always

exercisable by an individual. Indeed, it was not until

recognition of the corporation as a legally cognizable

"person" that the concept of an entity other than an

individual having constitutional "rights" was even

coherent, and the according of "rights" to

35 U.S. Const. amend. X (emphasis added).

36 270 F.3d 203 (Sth Cir. 2001).

37 Id. at 228.

| |

Le ee ee ee ee ee

15SA

"corporations" was and could be accomplished

only by holding that they were "persons."38

The panel’s holding that the right of "the people" with

respect to weapons "was not adopted in order to afford

rights to individuals"39 but only so that "they would

have the right to bear arms in the service of the

state"? is logically absurd. This becomes clear if one

interprets the phrase "the people" consistently, as

sound construction always requires,*! and applies the

Same construction to other amendments. The First

Amendment preserves "the right of the people

peaceably to assemble."42 The panel’s construction

implies that no individual can sue in court for an

abridgment of his or her right to assemble, because

the right is reserved to the people acting collectively.

The Fourth Amendment preserves "the right of the

people" to security from unreasonable searches and

seizures.43

The panel’s construction implies that no individual

has a right enforceable in court to be free from

unreasonable search and seizure, only "the people" as

a collective. Because "the people" act collectively

through their governments, the panel’s logic suggests

that the right to free assembly and the right to be free

from unreasonable searches and seizures are

protected only when people are acting, in the panel’s

phrase, "in the service of the state." That is not our

country.

38 See Pembina Consol. Silver Mining & Milling v.

Pennsylvania, 125 U.S. 181, 189 (1888).

39 Silveira, 312 F.3d at 1087.

40 Id. at 1076.

4! See, e.g., Dept. of Revenue of Oregon v. ACF Indus., 510

U.S. 332, 342 (1994) (noting the “normal rule of statutory

construction that identical words used in different parts of

the same act are intended to have the same meaning.”)

(quoting Sorenson v. Secretary of Treasury, 475 U.S. 851,

860 (1986)) (internal quotations omitted).

42 U.S. Const. amend. I. .

43 U.S. Const. amend. IV.

164

The panel’s interpretation is inconsistent with the

decision of the Supreme Court in United States v.

Verdugo-Urquidez.#* The Supreme Court said that-the

phrase "the people" "seems to be a term of-art" used in

the Preamble to the Constitution ("We the People’),

Article I § 2 (members of the House are chosen by "the

People"), and the First, Second, Fourth, Ninth and

Tenth Amendments, with the same meaning in each

place. The term "the people" means "a class of persons

who are part of a national community or who have

otherwise developed sufficient connection with this

country to be considered part of that community."45

In the usage of the Bill of Rights, a right of "the

people" is precisely what the panel says it is not: a

right of individuals that, like their right to peaceably

assemble and to be free from unreasonable search and

seizure, the Constitution entitles them to assert

against the government.**

44 United States v. Verdugo-Urquidez, 494 U.S. 259, 265

(1990).

45 Id.

*The Supreme Court has not determined whether the

Second Amendment has been “incorporated” so as to apply

against the states. Some commentators suggest that a

battle over incorporation stands between the Amendment

and any right enforceable against state legislation. See, e.g.,

Gil Grantmore, The Phages of American Law, 36 U.C. Davis.

L. Rev. 455, 474-75 (2003). The problem of exegesis posed

by the First Amendment, “Congress shall make no law .. .

.” is that somehow the prohibition against federal laws has

to be extended to state laws. The Second Amendment says

that “the right of the people . . . shall not be infringed,”

without limiting this protection of “the people’s” right to

protection against the federal government, so there is no

verbal barrier to incorporation as there was with the First

Amendment. Since it is plain that the First and Fourth

amendments, also protecting rights of “the people,” are

incorporated against the states, it is hard to discern any

sound reason why the right of “the people” in the Second

Amendment would not be similarly incorporated.

174

There is also a collective aspect to "the people,"

but hardly the government-run collective

contemplated by the panel. "We the People," when we

"ordain and establish this Constitution," 47 act

through convention, and then ratification in each

state through conventions of delegates chosen in each

state by the people. The act of "the people” in this

sense was revolutionary, replacing an old regime, the

Articles of Confederation, with a new one. And a core

value protected by the Second Amendment for "the

people" was “the Right of the people to alter or

abolish"** tyrannical government, as they had done a

decade before. The concept had been established by

law in England as well, after its revolution from 1640

to 1660. In 1765, Blackstone explained the right of

every Englishman "of having arms for their defence’

arose from "the natural right of resistance and self-

preservation, when the sanctions of society and laws

are found insufficient to restrain the violence of

oppression."49 .

As Blackstone describes the "natural right" of an

Englishman to keep and bear arms, the arms are for

personal defense as well as resistance to tyranny. The

two are not always separable. After the Civil War,

- southern states began passing "Black Codes,"

designed to limit the freedom of blacks as much as

possible.6© The "Black Codes" often contained

restrictions on firearm ownership and possession.51

The codes sometimes made it a crime for whites even

to loan guns to blacks.82 A substantial part of the

47 U.S. Const. pream.

48 The Declaration of Independence para. 2 (U.S. 1776).

* 1 William Blackstone, Commentaries on the Laws of

England 139 (Legal Classics Library 1983) (1765).

5° Robert J. Cottrol and Raymond T. Diamond, The Second

Amendment: Toward an Afro-Americanist Reconsideration,

80 Geo. L.J. 309, 344 (1991).

51 Id. at 345.

52 Id. at 345 n.178.

18A

debate in Congress on the Fourteenth Amendment

was its necessity to enable blacks to protect

themselves from White terrorism and tyranny in the

South.53 Private terrorist organizations, such as the

Ku Klux Klan, were abetted by southern state

governments’ refusal to protect black citizens, and the

violence of such groups could only be realistically

resisted with private firearms. When the state itself

abets organized terrorism, the right of the people to

keep and bear arms against a tyrant becomes

inseparable from the right to self-defense.

Ill.

The Second Amendment begins with the clause "A

weli-regulated Militia, being necessary to the security

of a free State ... ."&% Like the words "keep," "bear,"

and "the people," this prefatory language requires a

construction that accords it independent meaning. As

we shall see, far from limiting the right of the people to

keep and bear arms to their active military service in

some state-run unit, the prefatory language compels

an interpretation that protects the right of peopie as

individuals to keep and bear arms.

Much of the panel opinion addresses the meaning of

the term "militia," yet the panel fails to acknowledge

the controlling authorities that establish the meaning.

The word "militia" is a term of art, and does not mean

in the Constitution and laws of the United States what

it ;Ae€ans in some popular and journalistic usage — a

group of ultra-right wing individuals who arm

themselves as a paramilitary force. The panel defines

53. Stephen P. Halbrook, That Every Man Be Armed 110-15

(2d ed. 1994). Chief Justice Taney, in contrast, had earlier

led the Supreme Court to deny citizenship to blacks

precisely because it was so unthinkable they should have

the full rights of citizenship — including the right “to keep

and carry arms wherever they went.” Dred Scott v.

Sandford, 60 U.S. 393, 417 (1857).

54 U.S. Const. amend. II.

194

militia as "the permanent state militia, not some

amorphous body of the people as a whole."8S But the

law establishes with the utmost clarity that the militia

is precisely what the panel says it is not, an

"amorphous body of the people as a whole."

The United States Supreme Court’s decision in United

States v. Miller® establishes the definition of "militia"

in the Second Amendment, a definition we, as an

inferior court, must apply. Miller holds that "[tJhe

signification attached to the term Militia appears from

the debates in the Convention, the history and

‘legislation of Colonies and States, and the writings of

approved commentators. These show plainly enough

that the Militia comprised all males physically capable

of acting in concert for the common defense. ‘A body of

citizens enrolled for military discipline.’ "87 As no

intervening Supreme Court decision has altered this

holding, we must proceed on the basis that a militia is

a body of citizens, comprised at least of all males

physically capable of acting in concert for the common

defense. We shall see that "enrolled," for purposes of

militia service, means something more like being

registered for the draft, listed in the computer rolls for

potential jury service, or enrolled by social security

number for payment of taxes, than showing up at an

armory for signup and training. The panel offers no

explanation (and none could suffice) for failing to

follow Miller’s definition.

The Second Amendment was ratified in 1791. The

next year, Congress enacted the Militia Act,5%

implementing the Amendment and incorporating the

general understanding of the time as to what the word

meant, and establishing that the militia was indeed

what the panel says it was not — an "amorphous body

Silveira, 312 F.3d at 1072.

Id. at 179.

55

s© United States v. Miller, 307 U.S.-174 (1939).

$7

88 Militia Act, 1 Stat. 271 (1792).

204

of the people as a_ whole."5® The Militia Act

of 1792 defined the "militia" as: “each and every free

able-bodied white male citizen of the respective states,

resident therein, who is or shall be of the age of

eighteen years, and under the age of forty-five

years."©° Thus, contrary to the "collective rights"

notion in the panel opinion, the militia was precisely

not "a state entity, a state fighting force,"®! limited to

those who are active members of such a collective

organization. It was all the able-bodied white male

citizens from 18 to 45, whether they were organized

into a state fighting force or not.

In the appendix, I have reproduced the full text of this

act of the Second Congress of the United States, and

the text of section one appears in the footnote. It is

worth noting a few additional aspects of the act. First,

"each and every" "free able-bodied white male citizen"

between 18 and 45 is in the militia. Second, each such

person "shall" be enrolled by the commanding officer

and notified of his enrollment, whether he wants to be

enrolled or not.62 Most importantly, third, the act

59 That contemporaneous Congressional enactments should

inform our interpretation of the Bill of Rights is well

established. See Marsh v. Chambers, 463 U.S. 783, 788-92

(1983) (in discussing the constitutionality of opening

legislative sessions with a prayer, “It can hardly be thought

that in the same week Members of the First Congress voted

to appoint and to pay a Chaplain for each House and also

voted to approve the draft of the First Amendment for

submission to the States, they intended the Establishment

Clause of the Amendment to forbid what they had just

declared acceptable.”).

60 Id.

61 Silveira, 312 F.3d at 1070.

62 CHAP. XXXIII.— An Act more effectually to provide for the

National Defence by establishing an Uniform Militia

throughout the United States. (a)

SECTION 1. Be it enacted by the Senate and House of

Representatives of the United States of America in Congress

assembled, That each and every free able-bodied white male

Oe

214

required this “amorphous _ body of the people as a

whole" to arm themselves, as opposed to the historical

notion concocted by the panel that the Second

Amendment merely "preserved the right of the states to

citizen of the respective states, resident therein, who is or

shall be of the age of eighteen years, and under the age of

forty-five years (except as is herein after excepted) shall

severally and respectively be enrolled in the militia by the

captain or commanding officer of the company, within

whose bounds such citizen shall reside, and that within

twelve months after the passing of this act. And it shall at

all times hereafter be the duty of every such captain or

commanding officer of a company to enrol every such

citizen, as aforesaid, and also those who shall, from time to

time, arrive at the age of eighteen years, or being of the age

of eighteen years and under the age of forty-five years

(except as before excepted) shall come to reside within his

bounds; and shall without delay notify such citizen of the

said enrolment, by a proper noncommissioned officer of the

company, by whom such notice may be proved. That every

citizen so enrolled and notified, shall, within six months

thereafter, provide himself with a good musket or firelock, a

sufficient bayonet and belt, two spare flints, and a

knapsack, a pouch with a box therein to contain not less

than twenty-four cartridges, suited to the bore of his

musket or firelock, each cartridge to contain a proper

quantity of powder and ball; or with a good rifle, knapsack,

shot-pouch and powder-horn, twenty balls suited to the

bore of his rifle, and a quarter of a pound of powder; and

shall appear, so armed, accoutred and provided, when

called out to exercise, or into service, except, that when

called out on company days to exercise only, he may appear

without a knapsack. That the commissioned officers shall

severally be armed with a sword or hanger and espontoon,

and that from and after five years from the passing of this

act, all muskets for arming the militia as herein required,

shall be of bores sufficient for balls of the eighteenth part of

a pound. And every citizen so enrolled, and providing

himself with the arms, ammunition and accoutrements

required as aforesaid, shall hold the same exempted from

all suits, distresses, executions or sales, for debt or for the

payment of taxes.

224

arm their militias." The key language of this

enactment, contemporaneous with the Second

Amendment, is that "every citizen so enrolled and

notified shall, within six months thereafter, provide

himself with a good musket or firelock . . . or with a

good rifle."* Each militiaman also, by federal law, had

to "provide himself’ with a bayonet, two spare flints, at

least 24 cartridges if he brought a musket or firelock,

or 20 balls (bullets) if he brought a rifle, and all sorts

of other shooting equipment denoted in the finest

detail by the statute.66 The weapons, ammunition and

accessories were, by federal statute, "exempted" from

all suits and execution "for debt or for the payment of

taxes."66 Thus militiamen were entitled to keep their

weapons even if a creditor could take the rest of their

property, and even if that creditor was the government

(for unpaid taxes).

An incidental’ obenefit from reading this

contemporaneous implementing statute is that it

makes perfectly obvious what "well regulated" meant

at the time the Second Amendment was adopted. The

panel seems to imagine that a well regulated militia is

a people disarmed until the government puts guns in

their hands after summoning them to service. But the

contemporaneous statute shows that a well regulated

63 Silveira, 312 F.3d at 1087 (emphasis added).

64 1 Stat. 271 (1792) (emphasis added).

A musket is a shoulder gun, not necessarily rifled, named

as guns used to be after a small bird of prey. A firelock is a

flintlock, igniting the powder by flint and steel much as a

Zippo ignites lighter fluid; a rifle is a shoulder gun with

grooves in the barrel to make the bullet spin like a football

as it flies. See 5 Oxford English Dictionary 950 (J.A.

Simpson & E.S.C. Weiner, eds. 2d ed. 1989) (firelock); 10

Oxford English Dictionary 132 (J.A. Simpson & E.S.C.

Weiner, eds. 2d ed. 1989) (musket); and see generally John

Olson, The Book of the Rifle, 7-9 (1974); NRA Firearms Fact

Book 33-35 (3d ed. 1989).

6S 1 Stat. 271 (1792) (emphasis added).

66 = Id.

234

militia is just the opposite, a people who

have armed themselves at least to minimal national

standards, and whom the militia officers inspect to

assure that they have not wandered in off the streets

without guns.§7 The "regulat[ion]" contemplated was

not to disarm people when they were not at militia

exercises, but rather to make sure they were armed,

with their own guns. This was consistent with the

colonial pattern of laws that typically "required

colonists to carry weapons."6* Among the acts of the

crown seen as oppressions to be prevented from ever

happening again were the Militia Acts of 1757 through

1763 authorizing British officials "to seize and remove

the arms" of colonial militias when they thought it

necessary to the peace of the kingdom.6 The

American Revolution was triggered when General Gage

ordered troops to march from Boston to Lexington and

Concord to do just that.7 "[T]he Framers very

arguably rejected as basic a Weberian notion as the

state’s monopoly on legitimate violence . . . . [T]he

Framers weren’t late-twentieth-century Americans

°7 The notion of regulation requiring rather than prohibiting

civilians to carry guns is not so antique as this reference

may be taken to imply. The previously silent Alaska statutes

were amended in 1949 to require flyers of small planes to

Carry emergency equipment including “one pistol, revolver,

shotgun, or rifle, and ammunition for the same” much as

the colonial statutes did, in order to enable the pilot to

protect against bears if the plane went down before

completing its flight. This requirement was deleted from the

statute in 2001. See Alaska Stat. § 02.35.110 (current

version); ACLA § 32-6-13 (1949), amended by § 2 ch 128

SLA 1949 (adding provision requiring firearms); and § 10 ch

56 SLA 2001 (deleting that provision).

68 See Joyce Lee Malcom, To Keep and Bear Arms 139

(Harvard 1994).

69 Id. at 144.

70 Id. at 145.

244

(much less late-twentieth-century Europeans)... . "7!

They were the heirs of two revolutions, the English

and the American, with an altogether different

worldview.

The federal militia act promulgated immediately after

the Second Amendment was ratified assured that no

state could lighten the burden of its militia-eligible

citizens, perhaps by requiring of them only a dozen

rounds of ammunition instead of two dozen. And the

militia officers had to check to make sure all the able-

bodied white male citizens showed up when

summoned, as a jury clerk does. Beyond that, they

had to conduct inspections to make sure everyone had

the firearms, bullets, bayonets, two spare flints,

quarter pound of powder, ammunition pouch, and all

the accessories the statute required of them.72 These

were the national regulations of the "well regulated

militia.”

The interpretation the panel gives to the phrase "well

regulated" makes no more_ sense than _ the

interpretation it gives to "militia." The panel relies on a

single law review article for the proposition that the

purpose of a "well regulated Militia" is inconsistent

with an individual right to own weapons.7? The law

review article simply presents the author’s opinion, as

an ipse dixit, that "[The Second Amendment] does not

apply to the ‘unorganized’ militia, because that militia

is certainly not ‘well regulated’. . . The majority in the

First Congress intended to reassure the Anti-

71 Glenn Harlan Reynolds, The Second Amendment as a

Window on the Framer’s Worldview, in Eugene Volokh,

Robert J. Cottrol, Sanford Levinson, L.A. Powe, Jr., & Glenn

Harlan Reynolds, The Second Amendment as Teaching Tool

in Constitutional Law Classes, 48 J. Legal Educ. 591, 598

(1998).

72 1 Stat. 271 (1792).

73 Silveira, 312 F.3d at 1072 (citing Paul Finkelman, “A Well

Regulated Militia”: The Second Amendment in Historical

Perspective, 76 Chi.-Kent L. Rev. 195, 234 (2000)).

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'UUOUiUM__ io...

254

federalists that the national government

would not disarm those who are trained by the state

militia and in that body — the ‘well regulated Militia.’

"74 One reason this makes no sense is that the Second

Congress, consisting of many of the same personnel

as the first, described precisely what sort of regulation

they had in mind for a "well regulated" militia, and far

from requiring that anyone with a gun be trained and

supervised, they required that all the untrained and

unsupervised white male citizens between 18 and 45

acquire and maintain guns and ammunition. Another

reason is that, as the panel concedes, the Second

Amendment was written in part to avoid the necessity

of standing armies, and protect the citizenry against

standing armies, precisely the opposite of requiring

that only members of formally organized standing

collective government organizations have guns.

Were the modern federal statute to narrow the

meaning of "militia" to something like the organized

national guard that the panel envisions, then the

statutory meaning of the term would differ from the

meaning in the Second Amendment, and we would be

bound, for Constitutional purposes, by the broader

definition established by Miller. It would be as though

Congress defined "press" for purposes of issuing press

passes to a reserved section of the Capitol building to

mean something narrower than "press" for purposes of

the "freedom . . . of the press" protected by the First

Amendment. The new, narrower statutory meaning

would not limit the Constitutional freedom.

We need not parse this problem, though, because

Congress has broadened rather than narrowed the

term. Today the United States Code still defines the

term ‘"militia.""5 The modern statute, instead of

’4 Finkelman, 76 Chi.-Kent L. Rev. at 234. ’

7° 10 U.S.C. § 311. Militia: composition and classes

The militia of the United States consists of all able-bodied

males at least 17 years of age and, except as provided in

section 313 of title 32, under 45 years of age who are, or

a

tt tl ee ee

264

narrowing the militia to an organized body of

regularly supervised and trained part time soldiers,

broadens the term. The statute specifies that the

"militia" consists not only of the "organized" militia,

consisting of the National Guard and the Naval Militia,

but also an "unorganized militia." The "unorganized

militia" is precisely what the panel says it is not, "an

amorphous body of the people as a whole." Now,

instead of being limited to white male citizens between

18 and 45, the militia has (of course) no racial

restriction. Non-citizens are now included, provided

they have declared an intention to become citizens.

The sex restriction is gone and females are included if

they are members of the National Guard. People

become part of the militia now at age 17 instead of 18.

The only narrowing of the statutory scope is that we

are no longer required by law to own and furnish

guns, ammunition and bayonets. So now the militia

consists not only of all white male citizens between 18

and 45, but also all able-bodied non-white males,

whether citizens or non-citizens declared for

citizenship, between 17 and 45, and all females in the

National Guard. Those of us who are male and able-

bodied have almost all been militiamen for most of our

lives whether we know it or not, whether we were

organized or not, whether our state governments

supervised our possession and use of arms or not.

Thus, as used in law, the meaning of the word has not

changed significantly, other than to grow more

inclusive. It is, and always has been, emphatically the

who have made a declaration of intention to become,

citizens of the United States and of female citizens of the

United States who are members of the National Guard.

The classes of the militia are—

the organized militia, which consists of the National Guard

and the Naval Militia; and

(2) the unorganized militia, which consists of the members

of the militia who are not members of the National Guard or

the Naval

274

case that militia members do not have to

be "organized" in a "collective" state service, because

the statute provides expressly for the existence of the

"unorganized" militia. Members of the National Guard

are in the “organized militia," and those not in the

National Guard are also in the "unorganized militia."

Various classes of persons are exempt from militia

service, most notably the "organized fighting force," as

the panel would put it, who are active "[mJembers of

the armed forces." Thus, soldiers, as we now use the

term, are generally not in the militia, and the rest of

us are. Far from being an organized collectivity

functioning as a fighting force, the militia is like the

jury pool, consisting of "the people," limited, like the

jury pool, to those capable of performing the service

for which militias or jury pools are established. The

militia is indeed "the people," as individuals and not

as an organized collective body, and the Second

Amendment expressly prohibits government from

disarming the people.

IV.

The next analytic task is to determine how the

prefatory or purpose clause of the Second

Amendment, "A well-regulated Militia, being necessary

to the security of a free State," bears on the meaning

of "the right of the people to keep and bear Arms." The

panel’s interpretation that the Second Amendment

protects only the right of the states to arm their

militias is syntactically impossible, because the

language expressly provides that the right belongs to

"the people" rather than the states or the militias.

Treating the right the Second Amendment assigns to

"the people" as a power of the militia is even less

defensible than it would be to limit the Congressional

power to grant copyrights only to those writings that

actually do "promote the Progress of Science and

useful Arts,"76 rendering The Wizard of Oz and

76 U.S. Const. art. I.

Steamboat Willie uncopyrightable. The task of

providing a sounder interpretation is assisted by

consideration of the historical context of the Second

Amendment, the analytic approach used by the

Supreme Court in United States v. Miller, and the

practical consequences for militia service of an armed,

or disarmed, populace.

The historical context of the Second Amendment is a

long struggle by the English citizenry to enable

common people to possess firearms. When the

Amendment was adopted, the drafters doubtless

turned to provisions in many of the state constitutions

as models.77 These provisions themselves had models,

in the tradition of common-law lawyers copying older

forms. Like many of our individual liberties, the right

to keep and bear arms was cemented into English law

in the aftermath of the English Revolution, a little over

a century before the Second Amendment was drafted.

And like many provisions of the federal Constitution,

the Second Amendment had state constitutional

models, among which justificatory preambles were

common.78

The history that led to the drafting of the Second

Amendment evolved for centuries in England, leading

to its immediate predecessor in the English

Declaration of Rights. A 1328 statute provided for

forfeiture of arms and imprisonment if they were

improperly used or carried.79 A 1686 case construing

that statute held that its purpose was "to punish

people who go armed to terrify the King’s subjects,"8°

77 Eugene Volokh, The Commonplace Second Amendment,

73 N.Y.U. L. Rev. 793, 814 et seq. (1998).

78 Id. at 794 et seq.

79 Statute of Northampton, 2 Edw. 3, c. 3 (1328) (quoted in

5S The Founders’ Constitution 209 (Philip B. Kurland &

Ralph Lerner, eds., Liberty Fund 1987)).

80 Sir John Knight’s Case, 87 Eng. Rep. 75 (K.B. 1686)

(quoted in 5 The Founders’ Constitution 209 (Philip B.

Kurland & Ralph Lerner, eds., Liberty Fund 1987)).

294

apparently limiting the statute. Of course the

King’s subjects decided to quit being subjects in the

English revolution, from 1640 to 1660, and seized for

commoners rights that had previously been limited.

After the Restoration, following a long series of

grievances against James II, Parliament declared in

1689 that the English throne was "vacant."8! In

response to these grievances, and prior to offering the

throne to William of Orange and Mary, parliament

drafted the Declaration of Rights. In the debates

leading up to the passage of the Declaration of Rights,

members of parliament complained of Charles II’s and

James Il’s attempts to disarm their subjects.82

Parliament conditioned William’s and Mary’s accession

upon their acceptance of the Declaration of Rights (or

Bill of Rights as it is usually termed) of 1689.

The English Bill of Rights, a century before ours,

provided "That the subjects which are protestants,

may have arms for their defence suitable to their

conditions, and as allowed by law."83 Since England

had no states, obviously this right of "subjects" was a

right of individuals, not of states. William Blackstone,

who wrote his Commentaries roughly 75 years after

the Declaration of Rights, provided the standard

reference work for Colonial and early American

lawyers. "[His] works constituted the preeminent

authority on English law for the founding

generation,"®* and he was "the Framers’ accepted

authority on English law and_ the English

Constitution."8§ Because Blackstone covered the

8! Joyce Lee Malcom, To Keep and Bear Arms 113 (Harvard

1994).

82 Id. at 115.

83 1 W. & M., 2d sess., c, 2, Dec. 16, 1689 (quoted in 5 The

Founders’ Constitution 210 (Philip B. Kurland & Ralph

Lerner, eds., Liberty Fund 1987)).

84 Alden v. Maine, 527 U.S. 706, 715 (1999).

85 Neder v. United States, 527 U.S. 1, 30 (1999) (Scalia,

Souter, & Ginsburg, JJ., concurring in part and dissenting

in part). :

304

whole of the common law in only four easily read,

highly portable, well indexed volumes, it is easy to see

why our Founders found his treatise so useful, and

copied from it as much as they did. Blackstone

explains that the right of "having" arms is among the

five basic rights of every Englishman, those rights

which serve to secure the "primary rights."®¢ The right

to have arms is a natural right, in Blackstone’s view,

because it arises from the natural right of self

preservation, and the right (as an Englishman writing

only a century after the English Revolution would be

mindful of) of "resistance . . . to the violence of

oppression." Blackstone wrote: "The fifth and last

auxiliary right of the subject, that I shall at present

mention, is that of having arms for their defence,

suitable to their condition and degree, and such as are

allowed by law. Which is also declared by the same

statute 1 W. & M. st. 2. c.2 [the provision of the

English Bill of Rights quoted above] and is indeed a

public allowance, under due restrictions, of the

natural right of resistance and self-preservation, when

the sanctions of society and laws are found

insufficient to restrain the violence of oppression."87

Though Blackstone refers to the right of resistance

against oppression, his reasoning in the preceding

pages is based more on the idea that life and limb are

a gift of God, that natural liberty consists of "the right

of personal security, the right of personal liberty, and

the right of private property,"®* and that the high

value of life is what pardons homicide if in self

defense.®9

The English Bill of Rights and the Constitution’s

predecessor state constitutions based on it protected a

private and individual right to bear arms both for self

86 | William Blackstone, Commentaries on the Laws of

England 136, 139 (Legal Classics Library 1983) (1765).

87 Id. at 139.

88 Id. at 125.

89 Id. at 126.

314

defense and for defense against oppression, as

Blackstone explained. The Second Amendment was

not novel, but rather codified and expanded upon long

established principles. These principles protected

individual, not collective, rights to keep and bear

arms. And it was so understood. William Rawle’s A

View of the Constitution, published in 1829, explained

"The prohibition [in the Second Amendment] is

general. No clause in the Constitution could by any

rule of construction be conceived to give to congress a

power to disarm the people. Such a flagitious attempt

could only be made under some general pretence by a

state legislature. But if in any blind pursuit of

inordinate power, either should attempt it, this

amendment may be appealed to as a restraint on

both." Likewise, Justice Joseph Story wrote that

"The militia is the natural defence of a free country

against sudden _ foreign invasions, domestic

insurrections, and domestic usurpations of power by

rulers. It is against sound policy for a free people to

keep up large military establishments and standing

armies in time of peace, both from the enormous

expenses, with which they are attended, and the facile

means, which they afford to ambitious and

unprincipled rulers, to subvert the government, or

trample upon the rights of the people. The right of the

citizens to keep and bear arms has justly been

considered, as the palladium of the liberties of a

republic; since it offers a strong moral check against

the usurpation and arbitrary power of rulers; and will

generally, even if these are successful in the first

instance, enable the people to resist and triumph over

them."9!

9 William Rawle, A View of the Constitution of the United

States, 125-26 (2d. ed 1829) (quoted in 5 The Founders’

Constitution 214 (Philip B. Kurland & Ralph Lerner, eds.,

Liberty Fund 1987)).

91 3 Joseph Story, Commentaries on the Constitution §

1890 (1833) (quoted in 5 The Founders’ Constitution 214

324

Judge Thomas Cooley, in his The General Principles

of Constitutional Law wrote "It may be supposed from

the phraseology of this provision that the right to keep

and bear arms was only guaranteed to the militia; but

this would be an interpretation not warranted by the

intent. The militia, as has been elsewhere explained,

consists of those persons who, under the law, are

liable to the performance of military duty, and are

officered and enrolled for service when called upon.

But the law may make provision for the enrolment of

all who are fit to perform military duty, or of a small

number only, or it may wholly omit to make any

provision at all; and if the right were limited to those

enrolled, the purpose of this guaranty might be

defeated altogether by the action or neglect to act of

the government it was meant to hold in check. The

meaning of the provision undoubtedly is, that the

people, from whom the militia must be taken, shall

have the right to keep and bear arms, and they need

no permission or regulation of law for the purpose."%

Both Judge Cooley and Justice Story are, of course,

expressly cited as "important" commentators by the

Supreme Court’s opinion in Miller.9%

As Justice Thomas has written, "a growing body of

scholarly commentary indicates that the ‘right to keep

and bear arms’ is, as the Amendment’s text suggests,

a personal right."% The embarrassed attitude of many

(Philip B. Kurland & Ralph Lerner, eds., Liberty Fund

1987)).

92 Thomas M. Cooley, The General Principles of

Constitutional Law in the United States of America 281-82

(2d ed. 1891) (quoted in David B. Kopel, The Second

Amendment in the Nineteenth Century, 1998 B.Y.U. L. Rev.

1359, 1465 (1998)).

93 United States v. Miller, 307 U.S. 174, 182 n.3 (1939).

94 Printz v. United States, 521 U.S. 898, 938 n.2 (1997)

(Thomas, J., concurring) (citing J. Malcolm, To Keep and

Bear Arms: The Origins of an Anglo-American Right 162

(1994); S. Halbrook, That Every Man Be Armed, The

Evolution of a Constitutional Right (1984); Van Alstyne, The

334 |

of the honest scholars who have so concluded,

contrary to their own policy preferences, is well stated

by the title of one of the seminal articles, "The

Embarrassing Second Amendment." The texts and

treatises appear generally to be moving to the view

expressed in this opinion.%

V.

What we have, in the Second Amendment, is a

prohibition against government infringement of an

individual right to keep and bear arms, consistent

with what had long been understood to be a natural

right guaranteed by the English Bill of Rights to

Englishmen. The militia clause expanded the

protection from the English Bill of Rights to emphasize

the importance of a check and balance on standing

armies in addition to the traditional English right to

possess arms for purposes of self-defense. Like any

right, it is not absolute. Just as the right to freedom of

speech is subject to limitations for defamation,

threats, conspiracy, and all sorts of other traditional

qualifications, so is the right to keep and bear arms.

Indeed, the word "infringed" in the Second

Amendment suggests that the right, such as it is, may

not be "encroached upon,"% rather than that it, unlike

Second Amendment and the Personal Right to Arms, 43

Duke L.J. 1236 (1994); Amar, The Bill of Rights and the

Fourteenth Amendment, 101 Yale L.J. 1193 (1992); Cottrol

& Diamond, The Second Amendment: Toward an Afro-

Americanist Reconsideration, 80 Geo. L.J. 309 (1991);

Levinson, The Embarrassing Second Amendment, 99 Yale

L.J. 637 (1989); Kates, Handgun Prohibition and the

Original Meaning of the Second Amendment, 82 Mich.

L.Rev. 204 (1983)).

% See, e.g., 1 Laurence H. Tribe, American Constitutional

Law 902 n.211 (3d. ed. 2000) (recognizing a “right

(admittedly of uncertain scope) on the part of individuals to

possess and use firearms in the defense of themselves and

their homes 8 .”) and Akhil Reed Amar, The Bili of Rights

46-63 (1998) (adopting individual rights view).

% The American Heritage Dictionary 661 (2d ed. 1982).

- 348

all the other rights in the _ Bill of Rights, is absolute.

The one thing that is absolute is that the Second

Amendment guarantees a personal and individual

right ico keep and bear arms, and _ prohibits

government from disarming the people.

The Supreme Court’s decision in United States v.

Miller®? establishes the method by which we must

apply the Amendment’s opening clause, "A_ well

regulated militia, being necessary to the security of a

free state." In Miller, two defendants tried to get an

indictment for possessing a sawed off shotgun

dismissed on the basis of the Second Amendment

right to keep and bear arms. The district court granted

their motion. The Supreme Court reversed and

remanded. Miller teaches that the Amendment has the

"obvious purpose to assure the continuation and

render possible the effectiveness"%* of state militias

who would be "civilians primarily, soldiers on

occasion," -9® because of the wariness at the time

toward standing armies. The term "militia," Miller

holds, was intended in the Second Amendment to

denote substantially "all males physically capable of

acting in concert for the common defense."!©° Far from

being armed by the state governments as they found

desirable, as the panel says,!®! Miller holds that "these

men were expected to appear bearing arms supplied

by themselves." 1% Miller cites Blackstone, Adam

Smith, and colonial history sources, explaining the

civilian aspect of militias, as opposed to standing

armies, and that the militia system implied not just a

right, but "the general obligation of all adult male

97 307 U.S. 174 (1939).

9% Id. at 178.

9 Id. at 179.

100 Id.

101 Silveira, 312 F.3d at 1087.

102 307 U.S. at 179.

354

inhabitants to possess arms,"!% to assist as

needed in defense, and to furnish ammunition,

subject to fines if they did not possess arms. Many

of the colonies’ laws, quoted extensively in Miller,

established minimum standards to assure that the

weapons were adequate, such as that a musket had to

be at least 39" long. Much as building codes today

require smoke detectors in the home, a man had to

have a bullet mould, a pound of powder, four pounds

of lead, and twenty bullets, to be produced when

called for by a militia officer.195

Thus Miller cemented in, rather than reading out, the

interpretation of the Second Amendment that I have

followed. The Amendment reflected the Founders’

hostility to standing armies, and had as its purpose

assuring the effectiveness of a civilian non-standing

militia consisting of most of the able-bodied male

population, who were expected and often required to

own their own guns. The reason that the defendants

(who did not appear on appeal!) lost their case was

that "In the absence of any evidence tending to show

that possession or use of a ‘shotgun having a barrel of

less than eighteen 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 an instrument. Certainly it is not

within judicial notice that this weapon is any part of

the ordinary military equipment or that its use could

contribute to the common defense."1°7

What is striking about the reversal in Miller is the

great care the court took to limit its holding. Miller did

103 Id. (quoting 1 Osgood, The American Colonies in the

17th Century).

104 Id. at 180.

105 Td. at 180-81.

106 Stephen P. Halbrook, That Every Man Be Armed 165 (2d

ed. 1994).

107 Miller, 307 U.S. at 178 (emphasis added).

364

not adopt the "collective rights” notion that only

state governments as supervisors of the militia could

possess arms, though the government had urged that

interpretation on the Court in its brief.!°% Miller

rejected the notion of a sawed-off shotgun as a militia

weapon. It did not reject the right of individuals to

possess arms. And Miller qualified even the rejection of

sawed-off shotguns, by limiting the holding to a case

where there was no evidence, and judicial notice could

not be taken, of any "reasonable relationship" of

sawed-off shotguns to militia use. Had the Court been

of the view that the Second Amendment protected only

the powers of the states to arm their militias, it would

have accepted that argument from the government’s

brief, and never would have reached the issue of the

relationship of sawed off shotguns to militias.

What private possession of arms does carry a

"reasonable relationship to the preservation or

efficiency of a well-regulated militia?” This is the

question we must ask because this is the Second

Amendment test Miller construes’ from _ the

introductory clause of the Amendment. At the time the

Amendment was drafted, when states were likely to

have inadequate revenues to arm their militias, it was

necessary that those who might be useful arm

themselves with military type weapons. That is

probably less relevant today, though times can always

change. But the issue of furnishing arms for combat is

not the only one involved in militia effectiveness. An

effective militia requires not only that people have

guns, but that they be able to shoot them with more

danger to their adversaries than themselves. Standing

next to a nineteen year old who for the first time has a

loaded gun in his hands is like taking a fifteen or

sixteen year old for his first driving lesson. And if no

one knew how to shoot except designated shooters, a

military supply unit of new recruits would be as

106 United States v. Emerson, 270 F.3d 203, 223 (Sth Cir.

2001).

374

helpless as if no one knew how to drive except

designated drivers. Just as military mobility is

enhanced by near-universal civilian knowledge of how

to drive, likewise military effectiveness is promoted by

widespread civilian shooting skills (and, we shall see,

Congress has so decided and_ provided for civilian

firearms training).

An effective militia undoubtedly requires that a

considerable portion of the members enter it with

some familiarity with gun safety and use. Beginning in

1916, Congress provided for the army to promote

"practice in the use of rifled arms" by giving free

weapons and ammunition to "youth-oriented

organizations" and selling army surplus weapons to

adults, in an army-assisted "Civilian Marksmanship

Program."109 [In 1996, Congress’ created an

independent federal corporation, the first board of

directors to be appointed by the Secretary of the Army,

to carry on the same program,!!° which is in effect

today, for "instruction of citizens of the United States

in marksmanship."!11 Congress directed that the

corporation "give priority to activities that benefit

firearms safety, training, and competition for youth

and that reach as many youth participants as

possible."112 Thus, regardless of what policy

preferences others might have, the policy Congress

has adopted (and re-adopted in 1996) is to provide for

a well regulated militia by putting guns in young

people’s hands and teaching them how to handle them

safely and how to shoot them.

Though the stated justification and purpose of the

Amendment relates to the militia, the language is

carefully drafted to avoid abridging the traditional

English Bill of Rights entitlement of individuals to

9 10 U.S.C. § 4308 (1995).

10 36 U.S.C. § 5501 (1996) (current version at 36 U.S.C. §§

40701-02).

111 36 U.S.C. § 5502 (1996), recodified at 36 U.S.C. § 40722.

112 36 U.S.C. § 5502 (1996) recodified at 36 U.S.C. § 40724.

38h

possess arms for self defense. It would have, of

course, been highly unlikely that the American

Revolutionaries a few years later would have wanted

to deprive Americans of rights they had always had as

Englishmen. They protected this traditional right by

attaching the "right . . . to keep and bear Arms" to "the

people," rather than establishing it as a "power" of the

states. The English right was retained, and expanded.

Like most serious discussions of the Second

Amendment, this dissent focuses heavily on history.

Though general history, like legislative history, cannot

be used to supplant the words of the law, it informs us

of what social problem the writers of the law intended

to address.!13 The problem the Founders sought to

avoid was a disarmed populace. At the margins, the

Second Amendment can be read various ways in

various cases, but there is no way this Amendment,

designed to assure an armed population, can be read

to allow government to disarm the population.

VI.

Constitutional interpretation cannot properly be based

on whatever policy judgments we might make about

the desirability of an armed populace, or the relevance

of the Amendment’s concern with citizen militias to

modern times. Those who think the Second

Amendment is a troublesome antique inappropriate to

modern times can repeal it, as provided in Article V.

That has been done before, as with legislative selection

of Senators, and with Prohibition. There is a serious

argument for its continued relevance, from those who

think that the natural right to self defense, protected

by the English Bill of Rights as well as the Second

Amendment, is still important as a matter of policy. A

police force in a free state cannot provide everyone

with bodyguards. Indeed, while some think guns

cause violent crime, others think that widespread

113 See Portland 76/Auto Truck Plaza v. Union Oil, 153 F.3d

938, 944 (9th Cir. 1998).

394

possession of guns on balance reduces violent

crime.114 None of these policy arguments on either

side affects what the Second Amendment says, that

our Constitution protects "the right of the people to

keep and bear Arms."

Neither can judges’ policy concerns affect our duty as

a court. Congress and the states may enact

reasonable restrictions to manage the ways in which

the populace exercises its right to keep and bear arms,

just as reasonable restrictions are imposed on our

rights to free speech, free assembly, freedom from

search and seizure, and all our other constitutional

rights. What the Second Amendment prohibits is not

reasonable regulation consistent with its purposes,

but disarmament of the people. Where the

Constitution establishes a right of the people, no

organ of the government, including the courts, can

legitimately take that right away from the people. All of

our rights, every one of them, may become

impediments to the efficient functioning of our

government and our society from time to time, but

fortunately they are locked in by the Constitution

against permanent loss because of temporary

impediments. The courts should enforce our

individual rights guaranteed by our Constitution, not

erase them.

GOULD, Circuit Judge, with whom Circuit Judge

KOZINSKI joins, dissenting from denial of rehearing

en banc:

The error of Hickman v. Block, 81 F.3d 98 (9th Cir.

1996), is repeated once again, thus I respectfully

dissent from denial of rehearing en banc for the

reasons stated in my concurring opinion in Nordyke uv.

King, 319 F.3d 1185, 1192-98 (9th Cir. 2003) (Gould,

J., specially concurring). As 1 there explained,

restricting the Second Amendment to a "collective

114 See, e.g., John Lott, More Guns, Less Crime (1998).

404

rights" view and ignoring _ the individual right of the

people to keep and bear arms is inconsistent with the

Second Amendment’s language, structure, and

purposes, and weakens our Nation against recurrent

internal and external threats that may undermine

individual liberty. See also United States v. Emerson,

270 F.3d 203 (Sth Cir. 2001).

DECISION OF US COURT OF APPEALS

SILVEIRA v. LOCKYER,

312 F.3d 1052 (97 Cir. Dec. 5, 2002,

amended Jan. 27, 2003)

http: / /caselaw.lp.findlaw.com/data2/circs/9th/0115

O98ap.pdf

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

SEAN SILVEIRA, et al, Plaintiffs-Appellants,

v.

BILL LOCKYER, Attorney General; GRAY DAVIS,

Governor, State of California, Defendants-Appellees.

Appeal from the United States District Court

Eastern District of California

William B. Shubb, District Judge, Presiding

Argued and Submitted

February 15, 2002—San Francisco, California

FILED DECEMBER 5, 2002

Before: Stephen Reinhardt, Frank J. Magill,* and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Reinhardt;

Concurrence by Judge Magill

*The Honorable Frank J. Magill, Senior Circuit Judge,

Eighth Circuit, sitting by designation.

COUNSEL

Gary W. Gorski, Fair Oaks, California, for appellants.

414

Nancy Palmieri, Deputy Attorney General, Office

of the Attorney General, San Diego, California, for the

appellees. d

ORDER

The majority opinion filed Dec. 5, 2002, is hereby

amended as follows:

1 At Slip Op. at 7, footnote 1, replace “See Michael A.

Bellesiles, Gun Control: A Historical Overview, 28

CRIME & JUST. 137, 174-76 (2001) (discussing the

enactment of the National Firearms Act of 1934, ch.

757, 48 Stat. 1236 (1934) (current version codified as

26 U.S.C. §§ 5801-72)), as a reaction to the use of

machine guns by mobsters and the depiction of such

violence in films such as Scarface).”

with

“See EARL R. KRUSCHKE, GUN CONTROL: A

REFERENCE HANDBOOK 84, 170-(1995) (discussing

the enactment of the National Firearms Act of 1934,

ch. 757, 48 Stat. 1236 (1934) (current version codified

as 26 U.S.C. §§ 5801-72), as a reaction to the use of

machine guns by mobsters and “organized crime

elements”).”

2. At Slip Op. at 44, footnote 37, delete “(quoted in

Michael A. Bellesiles, The Second Amendment in

Action, 76 CHI.-KENT L. REV. 61, 65 (2000))”

OPINION

REINHARDT, Circuit Judge:

In 1999, the State of California enacted

amendments to its gun control laws that significantly

strengthened the state’s restrictions on _ the

possession, use, and transfer of the semiautomatic

weapons popularly known as “assault weapons.”

Plaintiffs, California residents who either own assault

weapons, seek to acquire such weapons, or both,

brought this challenge to the gun control statute,

asserting that the law, as 5 SILVEIRA v. LOCKYER

amended, violates the Second Amendment, the Equal

Protection Clause, and a host of other constitutional

42K

provisions. The district court dismissed all of the

plaintiffs’ claims. Because the Second Amendment

does not confer an individual right to own or possess

arms, we affirm the dismissal of all claims brought

pursuant to that constitutional provision. As to the

Equal Protection claims, we conclude that there is no

constitutional infirmity in the statute’s provisions

regarding active peace officers. We find, however, no

rational basis for the establishment of a statutory

exception with respect to retired peace officers,_ and

hold that the retired officers’ exception fails even the

most deferential level of scrutiny under the Equal

Protection Clause. Finally, we conclude that each of

the three additional constitutional claims asserted by

plaintiffs on appeal is without merit.

I, INTRODUCTION

In response to a proliferation of shootings

involving semiautomatic weapons, the California

Legislature passed the Roberti-Roos Assault Weapons

Control Act (“the AWCA”) in 1989. See 1989 Cal. Stat.

ch. 19, § 3, at 64, codified at CAL. PENAL CODE §

12275 et seq. The immediate cause of the AWCA’s

enactment was a random shooting earlier that year at

the Cleveland -Elementary School in Stockton,

California. An individual armed with an AK-47 semi-

automatic weapon opened fire on the schoolyard,

where three hundred pupils were enjoying their

morning recess. Five children aged 6 to 9 were killed,

and one teacher and 29 children were wounded.

Kasler v. Lockyer, 2 P.3d 581, 587 (Cal. 2000).

The California Assembly met soon thereafter in

an extraordinary session called for the purpose of

enacting a response to the Stockton shooting. 1 CAL.

ASSEMBLY J., at 436-37 (Feb. 13, 1989). The

legislation that followed, the AWCA, was the first

legislative restriction on assault weapons in the

nation, and was the model for a similar federal statute

enacted in 1994. Public Safety and Firearms Use

Protection Act, Pub. L. 6 SILVEIRA v. LOCKYER No.

434

103-322, 108 Stat. 1996 (codified at 18 U.S.C. §§

921 et seqg.). The AWCA renders it a felony offense to

manufacture in California any of the semi-automatic

weapons specified in the statute, or to possess, sell,

transfer, or import into the state such weapons

without a permit. CAL. PENAL CODE § 12280.

1 The statute contains a grandfather clause that

permits the ownership of assault weapons by individuals

who lawfully purchased them before the _ statute’s

enactment, so long as the owners register the weapons

1 Semiautomatic weapons differ from fully automatic machine

guns in the following respects: Automatic weapons feed

ammunition into the gun’s chamber immediately after the firing

of each bullet, so that the weapon will continue to reload and

fire continuously so long as the trigger is depressed. Purchase

and ownership of automatic weapons has been restricted by the

federal government since the days of Al Capone and the

machine gun violence associated with the Prohibition Era. See

Michael A. Bellesiles, Gun Control: A Historical Overview, 28

CRIME & JUST. 137, 174-76 (2001) (discussing the enactment

of the National Firearms Act of 1934, ch. 757, 48 Stat. 1236

(1934) (current version codified as 26 U.S.C. §§ 5801-72)), asa

reaction to the use of machine guns by mobsters and the

depiction of such violence in films such as Scarface).

In contrast to automatic weapons, only one bullet is fired when

the user of a semi-automatic weapon depresses the trigger, but

another is automatically reloaded into the gun’s chamber. 27

C.F.R. § 178.11 (defining semiautomatic weapons). Thus, by

squeezing the trigger repeatedly and rapidly, the user can

release many rounds of ammunition in a brief period of time —

certainly many more than the user of a standard, manually-

loaded weapon. Moreover, the semi-automatic weapons known

as assault weapons contain large-capacity magazines, which

require the user of the weapon to cease firing to reload relatively

infrequently because the magazines contain so much

ammunition. Consequently, users of such weapons can “spray-

fire” multiple rounds of ammunition, with potentially

devastating effects. Michael G. Lennett, Taking A Bite Out of

Violent Crime, 20 U. DAYTON L. REV. 573, 609 (1995).

444

with the state Department of Justice. Id.2 The grandfather

clause, however, imposes significant restrictions on the

use of weapons that are registered pursuant to its

provisions. Id.§ 12285(c).3 Approximately forty models of

firearms are listed in the statute as subject to ‘its

restrictions.

The specified weapons include “civilian” models of

military weapons that feature slightly less firepower than

the military issue versions, such as the Uzi, an Israeli-

made military rifle; the AR-15, a semi-automatic version

of the United States military’s standard-issue machine

gun, the M-16; and the AK-47, a Russian-designed and

Chinese-produced military rifle. The AWCA also includes a

mechanism for the Attorney General to seek a judicial

declaration in certain California Superior Courts that

weapons identical to the listed firearms are also subject to

the statutory restrictions. § 12276.5(a)(1)-(2).4

The AWCA includes a provision that codifies the

. legislative findings and expresses the legislature’s reasons

for passing the law:

2 An individual who lawfully obtained an assault weapon prior

to the enactment of the AWCA may avoid the requirement of

registering it with the state if he renders the weapon

permanently inoperable, relinquishes it to a_ state law

enforcement agency, sells it to a licensed California firearms

dealer, or removes it from the State of California.

3 A person who has registered an assault weapon may possess

the weapon only at his own residence, his place of business,

certain private and public clubs organized for the purpose of

target shooting, certain firearms exhibitions approved by law

enforcement agencies, or on specified public lands. §

12285(c)(1)-(6). Additionally, an assault weapon owner may

transport his registered weapon to any of the above locations

only so long as he complies with the methods of transportation

prescribed in the statute. § 12285(7); § 12026.1.

4 Unless otherwise noted, citations to statutory provisions in

this opinion refer to the sections of the AWCA as codified in the

California Penal Code.

The Legislature hereby finds and declares that the

proliferation and use of assault weapons poses a threat to

the health, safety, and security of all citizens of this state.

The Legislature has restricted the assault weapons

specified in [the statute] based upon finding that each

firearm has such a high rate of fire and capacity for

firepower that its function as a legitimate sports or

recreational firearm is substantially outweighed by the

danger that it can be used to kill and injure human

beings. It is the intent of the Legislature in enacting this

chapter to place restrictions on the use of assault

weapons and to establish a registration and permit

procedure for their lawful sale and possession. It is not,

however, the intent of the Legislature by this chapter to

place restrictions on the use of those weapons which are

primarily designed and intended for hunting, target

practice, or other legitimate sports or recreational

activities. Id. § 12275.5.

In 1999, the legislature amended the AWCA in

order to broaden its coverage and to render it more

flexible in response to technological developments in the

manufacture of semiautomatic weapons. The amended

AWCA retains both the original list of models of restricted

weapons, and the judicial declaration procedure by which

models may be added to the list. The 1999 amendments

to the AWCA statute add a third method of defining the

class of restricted weapons: The amendments provide that

a weapon constitutes a restricted assault weapon if it

possesses certain generic characteristics listed in the

statute. Id. § 12276.1.5 Examples of the types of weapons

5 The reason that the legislature defined the restricted assault

weapons generically, by feature, is that after the enactment of

the AWCA, gun manufacturers began to produce “copycat”

weapons in order to evade the statute’s restrictions. These

weapons varied only slightly from the models listed in the act,

but were different enough from those models that they evaded

the law’s restrictions. Martha L. Willman, Davis Backs Bill to

restricted by the revised AWCA include a “semiautomatic,

centerfire rifle that has a fixed magazine with the capacity

to accept more than 10 rounds,” § 12276.1(a)(2), and a

semiautomatic, centerfire rifle that has the capacity to

accept a detachable magazine and also features a flash

suppressor, a grenade launcher, or a flare launcher. §

12276. 1(a)(1)(A)-(E). The amended AWCA also restricts

assault weapons equipped with “barrel shrouds,” which

protect the user’s hands from the intense heat created by

the rapid firing of the weapon, as well as semiautomatic

weapons equipped with silencers. Id.

As originally enacted, the AWCA authorized

specified law enforcement agencies to purchase and

possess assault weapons, and permitted individual sworn

members of those agencies to possess and use the

weapons in the course of their official duties.6 Two

additional provisions relating to peace officers were added

by the 1999 amendments. First, the legislature provided

that the peace officers permitted to possess and use

assault weapons in the discharge of their official duties

were permitted to do so “for law enforcement purposes,

whether on or off duty.” § 12280(g). Second, the

amendments added an exception for retired peace officers.

The exception provides that “the sale or transfer of assault

weapons by an entity [listed in note 6, supra,] to a person,

upon retirement, who retired as a sworn officer from that

entity” is permissible, and that the general restrictions on

possession and use of assault weapons do not apply to a

retired peace officer who receives the weapon upon

Limit Assault Gun Sale and Use Legislation, L.A. TIMES, Apr. 27,

1999, at B2.

6 The specified agencies include the California Department of

Justice, police departments, sheriffs’ departments, marshals’

offices, the Youth and Adult Corrections Agency, the

Department of the California Highway Patrol, district attorneys’

offices, Department of Fish and Game, and Department of Parks

and Recreation. § 12280(f). Also included were members of the

“military or naval forces of this state or of the United States.” Id.

474

retirement from his official duties. § 12280(h)-(i). In sum,

then, the statute as amended may fairly be characterized

as constituting a ban on the possession of assault

weapons by private individuals; with a grandfather clause

permitting the retention of previously-owned weapons by

their purchasers, provided the owners register them with

the state; and with a statutory exception allowing the

possession of assault weapons by retired peace officers

who acquire them from their employers at the time of

their retirement.

Plaintitfs in this case are nine individuals, some of

whom lawfully acquired weapons that were subsequently

classified as assault weapons under the amended AWCA.7

They filed this action in February, 2000, one month afté=——

the 1999 AWCA amendments took effect. Plaintiffs who

" Own assault weapons challenge the AWCA-requirements

that they either register, relinquish, or render inoperable

their assault weapons as violative of their Second

Amendment rights. Plaintiffs who seek to purchase

weapons that may no longer lawfully be purchased in

California also attack the ban on assault weapon sales as

being contrary to their rights under that Amendment.

Additionally, plaintiffs who are not active or retired

California peace officers challenge on Fourteenth

Amendment Equal Protection grounds two provisions of

the AWCA: one that allows active peace officers to possess

assault weapons while off-duty, and one that permits

retired peace officers to possess assault weapons they

acquire from their department at the time of their

retirement. The State of California immediately moved to

dismiss the action pursuant to Federal Rule of Civil

Procedure 12(b)(6), contending that all the claims were

barred as a matter of law. After a hearing, the district

judge granted the defendants’ motion in all respects, and

? The nine plaintiffs include, inter alia, two California National

Guardsmen (both combat veterans), a San Francisco police

officer, an insurance agent, a chemical engineer, and a

California correctional officer.

7 48h

dismissed the case. Plaintiffs appeal, and we affirm on all

claims but one.

i. DISCUSSION

A. Background and Precedent.

A robust constitutional debate is currently taking

place in this nation regarding the scope of the Second

Amendment, a debate that has gained intensity over the

last several years. Until recently, this relatively obscure

constitutional provision attracted little judicial or

scholarly attention. As a result, however, of increasing

popular concern over gun violence, the passage of

legislation restricting the sale and use of firearms, the

cultural significance of firearms in American society, and

the political activities of pro-gun enthusiasts under the

leadership of the National Rifle Association (the NRA), the

disagreement over the meaning of the Second Amendment

has grown particularly heated.

[1] There are three principal schools of thought that

form the basis for the debate. The first, which we will refer

to as the “traditional individual rights” m idel, holds that

the Second Amendment guarantees to .idividual private

citizens a fundamental right to possess and use firearms

for any purpose at all, subject only to limited government

regulation. This view, urged by the NRA and other |

firearms enthusiasts, as well as by a prolific cadre of

fervent supporters in the legal academy, had never been

adopted by any court until the recent Fifth Circuit

decision in United States v. Emerson, 270 F.3d 203, 227

(Sth Cir. 2001), cert. denied, 122 S. Ct. 2362 (2002). The

second view, a variant of the first, we will refer to as the

“limited individual rights” model. Under that view,

individuals maintain a constitutional right to possess

firearms insofar as such possession bears a reasonable

relationship to militia service.* The third, a wholly

8 In the Fifth Circuit’s decision in Emerson, that court describes

a view of the amendment that it calls the “sophisticated

collective rights model.” 270 F.3d at 219. That view of the

amendment holds that individual members of state militia may

Se

494

contrary view, commonly called the “collective rights”

model, asserts that the Second Amendment right to “bear

arms” guarantees the right of the people to maintain

effective state militias, but does not provide any type of

individual right to own or possess weapons. Under this

theory of the amendment, the federal and_ state

governments have the full authority to enact prohibitions

and restrictions on the use and possession of firearms,

subject only to generally applicable constitutional

constraints, such as due process, equal protection, and

the like. Long the doniinant view of the Second

Amendment, and widely accepied by the federal courts,

the collective rights model has recently come under strong

criticism from individual rights advocates. After

conducting a full analysis of the amendment, its history,

and its purpose, we reaffirm our conclusion in Hickman v.

Block, 81 F.3d 98 (9th Cir. 1996), that it is this collective

rights model which provides the best interpretation of the

Second Amendment.

personally use and possess firearms, but only to the extent that

they do sc as part of their active military service. Id. We

conclude that a more plausible theory is that which we describe

as the “limited individual right” model. Of course, one could

posit a series of variations on the Second Amendment theme,

including a number of potential approaches differing only in

degree from each other. The Fifth Circuit’s “sophisticated

collective rights model,” however, appears to be a strawman

that can all too readily be disposed of, as the Fifth Circuit does

with relatively little difficulty. Ultimately, the Fifth Circuit

adopts a weapons-based theory of the amendment that permits

individuals to possess firearms for personal use, regardless of

the relationship of the individual or the weapon to militia

service, as long as those weapons have a “legitimate use in the

hands of private individuals.” Emerson, 270 F.3d at 223

(quoting the government’s brief in United States v. Miller, 307

U.S. 174 (1939)). We conclude, respectfully, that the Fifth

Circuit’s theory is contrary not only to Miller but to the basic

purpose and effect of the Second Amendment.

Despite the increased attention by commentators

and political interest groups to the question of what

exactly the Second Amendment protects, with the sole

exception of the Fifth Circuit’s Emerson decision there

exists no thorough judicial examination of the

amendment’s meaning. The Supreme Court’s most

extensive treatment of the amendment is a somewhat

cryptic discussion in United States v. Miller, 307 U.S. 174

(1939). In that case, a criminal defendant brought a

Second Amendment challenge to a federal gun control law

that prohibited the transport of sawed-off shotguns in

interstate commerce. The Court rejected the challenge to

the statute. In the only and oft-quoted passage in the

United States Reports to consider, albeit somewhat

indirectly, whether the Second Amendment establishes an

individual right to arms, the Miller Court concluded:

In the absence of any evidence tending to show that

possession or use of a ‘shotgun having a barrel of

less than eighteen inches in length’ at this time has

some reasonable relationship to the reservation or

efficiency of a well regulated militia, we cannot say

that the Second Amendment guarantees the right

to keep and bear such an instrument. Certainly it

is not within judicial notice that this weapon is any

part of the ordinary military equipment or that its

use could contribute to the common defense.

Miller, 307 U.S. at 178. The Miller Court also observed

more generally that “[w]ith the obvious purpose to assure

the continuation and render possible the effectiveness of

[state militias] the declaration and guarantee of the

Second Amendment were made. It must be interpreted

and applied with that end in view.” Id. Thus, in Miller the

Supreme Court decided that because a weapon was not

suitable for use in the militia, its possession was not

protected by the Second Amendment. As a result of its

phrasing of its holding in the negative, however, the Miller

Court’s opinion stands only for the proposition that the

possession of certain weapons is not protected, and offers

little guidance as to what rights the Second Amendment

SIA

does protect. Accordingly, it has been noted, with good

reason, that “[t]he Supreme Court’s jurisprudence on the

scope of [the Second] [AJmendment is quite limited, and

not entirely illuminating.” Gillespie v. City of Indianapolis,

185 F.3d 693, 710 (7th Cir. 1999). What Miller does

strongly imply, however, is that the Supreme Court rejects

the traditional individual rights view.

The only post-Miller reference by the Supreme

Court to the scope of the amendment occurred in Lewis v.

United States, 445 U.S. 55, 65 n. 8 (1980), in which the

Court noted, in a footnote dismissing a Second

Amendment challenge to a felon-in-possession conviction,

that the federal gun control laws at issue did not “trench

upon any constitutionally protected liberties,” citing Miller

in support of this observation. In that footnote, Lewis

characterized the Miller holding as follows:

“[T]he Second Amendment guarantees no right to keep

and bear a firearm that does not have ‘some reasonable

relationship to the preservation or efficiency of a well-

regulated militia.’ ” Id. (quoting Miller, 307 U.S. at 178).

The Lewis Court, like the Miller Court, phrased its

statements in terms of what is not protected. Lewis does,

however, reinforce the strong implication in Miller that the

Court rejects the traditional individual rights model.

Some thirty-odd years after Miller, two Justices of

the Court pithily expressed their views on the question

whether the Second Amendment limits the power of the

federal or state governments to enact gun control laws.

Justice Douglas, joined by Justice Thurgood Marshall,

stated in dissent in Adams v. Williams, that in his view,

the problem of police fearing that suspects they

apprehend are armed:

is an acute one not because of the Fourth

Amendment, but because of the ease with which

anyone can acquire a pistol. A powerful lobby dins

into the ears of our citizenry that these gun

purchases are constitutional rights protected by

the Second Amendment ... . There is under our

decisions no reason why stiff state laws governing

the purchase and possession of pistols may not be

enacted. There is no reason why pistols may not be

barred from anyone with a police record. There is

no reason why a State may not require a purchaser

of a pistol to pass a psychiatric test. There is no

reason why all pistols should not be barred to

everyone except the police.

407 U.S. 143, 150 (1972) (Douglas, J., dissenting). In

short, in Adams two then-sitting Justices made it clear

that they believed that the Second Amendment did not

afford an individual right — traditional, limited, or

otherwise — to own or possess guns.

We also note that two of the Supreme Court’s

recent decisions that limit the power of the federal

government to regulate activities of the states relate to

firearms restrictions. See Printz v. United States, 521 U.S.

898 (1997) (holding that a federal requirement that state

officers perform background checks on gun purchasers

violates the anti-commandeering principle of the Tenth

Amendment); United States v. Lopez, 514 U.S. 549 (1995)

(holding that Congress exceeded its authority under the

Commerce Clause by enacting the Gun-Free School Zones

Act). In neither case did the Court address a Second

Amendment issue directly; however, in each case a

currently-sitting Justice expressed his individual view of

the amendment’s scope, directly or indirectly, but from

radically different standpoints. In his dissent in Lopez,

Justice Stevens, although not mentioning the Second -

Amendment, strongly implied that he believes that it

offers no obstacles to the federal government’s ability to

regulate firearms:

Guns are both articles of commerce and articles

that can be used to restrain commerce. Their

possession is the consequence, either directly or

indirectly, of commercial activity. In my judgment,

Congress’ power to regulate commerce in firearms

includes the power to prohibit possession of guns

at any location because of their potentially harmful

use....

S34

514 U.S. at 602-03 (Stevens, J., dissenting). Justice

Thomas spoke to the Second Amendment issue more

directly in his concurrence in Printz, in words that

suggested that he may well support the traditional

individual rights view:

This Court has not had recent occasion to consider

the nature of the substantive right safeguarded by

the Second Amendment. If, however, the Second

Amendment is read to confer a personal right to

“keep and bear arms,” a colorable argument exists

that the Federal Government’s regulatory scheme,

at least as it pertains to the purely intrastate sale

or possession of firearms, runs afoul of that

Amendment’s protections. As the parties did not

raise this argument, however, we need not consider

it here. Perhaps, at some future date, this Court

will have the opportunity to determine whether

Justice Story was correct when he wrote that the

right to bear arms “has justly been considered, as

the palladium of the liberties of a republic.” 3 J.

Story, Commentaries § 1890, p. 746 (1833).

521 U.S. at 938-39 (Thomas, J., concurring) (emphasis in

original).9

Finally, we note that, after his retirement, Chief

Justice Warren Burger uttered one of the most widely

publicized comments about the Second Amendment ever

made by a Justice inside or outside the context of a

judicial opinion. In an interview, former Chief Justice

Burger stated that the traditional individual rights view

was:

one of the greatest pieces of fraud, I repeat the

word ‘fraud,’ on the American public by special

interest groups that I've ever seen in my lifetime.

® Justice Thomas did not explain why it was relevant that the

Court had not ruled on the issue recently or why a Second

Amendment decision might be of less force if it was handed

down by an earlier Court.

S4A

The real purpose of the Second Amendment was to

ensure that state armies — the militia — would be

maintained for the defense of the state. The very

language of the Second Amendment refutes any

argument that it was intended to guarantee every

citizen an unfettered right to any kind of weapon he

or she desires.

Warren E. Burger, The Right to Bear Arms, PARADE

MAGAZINE, Jan. 14, 1990, at 4. Although we in no way

share Chief Justice Burger’s view that Second

Amendment enthusiasts are gu*ity of fraud, we do

generally agree with his statements regarding the

Amendment’s purpose and scope.

Our court, like every other federal court of appeals

to reach the issue except for the Fifth Circuit, has

interpreted Miller as rejecting the traditional individual

rights view. In Hickman v. Block, we held that “the Second

Amendment guarantees a collective rather than an

individual right.” 81 F.3d at 102 (citation and quotation

marks omitted).!° Like the other courts, we reached our

conclusion regarding the Second Amendment’s scope

largely on the basis of the rather cursory discussion in

Miller, and touched only briefly on the merits of the debate

over the force of the amendment. See id.!!

10 In Hickman, we held that an individual could not bring a

Second Amendment challenge to a California law which requires

that a permit be obtained in order to carry a concealed weapon,

and, as noted in the text, unambiguously adopted the view that

the Second Amendment establishes a_ collective right.

Nevertheless, just six days after the issuance of that decision,

Judge Alex Kozinski, acknowledgedly an extremely able and

dedicated jurist, appeared to cling fast to the individual rights

view, despite the existence of binding circuit precedent to the

contrary that may in no way be dismissed as dicta. United

States v. Gomez, 92 F.3d 770, 774 n.7 (9th Cir. 1996). The two

other judges in Gomez, one of whom was the author of

Hickman, refused to join in the footnote.

11 See Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th

Cir. 1999), cert. denied, 528 U.S. 1116 (2000); United States v.

Pe eee eS ee a

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FP Ee ey ebay ON) Oe aT See eee ene ee

Appellants contend that we misread Miller in

Hickman.'2 They point out that, as we have already noted,

Wright, 117 F.3d 1265, 1273-74 (11th Cir.), cert. denied, 522

U.S. 1007 (1997); United States v. Rybar, 103 F.3d 273, 286 (3d

Cir. 1996), cert. denied, 522 U.S. 807 (1997); Love v. Pepersack,

47 F.3d 120, 124 (4th Cir.), cert. denied, 516 U.S. 813 (1995);

United States v. Hale, 978 F.2d 1016, 1019-20 (8th Cir. 1992),

cert. denied, 507 U.S. 997 (1993); Thomas v. Members of City

Council, 730 F.2d 41, 42 (lst Cir. 1984) (per curiam); United

States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert.

denied, 435 U.S. 926 (1978); United States v. Warin, 530 F.2d

103, 106 (6th Cir.), cert. denied, 426 U.S. 948 (1976).

Although the majority of circuit courts have, with comparatively

little analysis, adopted the collective rights view, the Third and

Tenth Circuits appear to have suggested the possible use of

some form of intermediate model. In rejecting a criminal

defendant’s Second Amendment defense to a gun possession

charge, the Tenth Circuit stated: “To apply the [Second]

[AJmendment so as to guarantee appellant’s right to keep an

unregistered firearm which has not been shown to have any

connection to the militia, merely because he is technically a

member of the Kansas militia, would be unjustifiable in terms of

either logic or policy.” Oakes, 564 F.2d at 387. In Rybar, the

Third Circuit concluded that: “Rybar [has not] establish[ed] that

his firearm possession bears a reasonable relationship to ‘the

preservation or efficiency of well-regulated militia.’” 103 F.3d at

286 (quoting Miller, 307 U.S. at 178).

It appears that only the Second and District of Columbia

Circuits have not taken a position, considered or otherwise, on

the nature of the right established by the Second Amendment.

See Fraternal Order of Police v. United States, 152 F.3d 998,

1002 {D.C. Cir. 1998) (“Despite the intriguing questions raised,

we will not attempt to resolve the status of the Second

Amendment right... .”).

12 Since Hickman, we have cited its holding, with little

discussion, in a few criminal cases in which the defendant

raised a general Second Amendment defense to various firearms

convictions along with other defenses that relate more

specifically to the particular offenses alleged. See, e.g., United

States v. Hinostroza, 297 F.3d 924 (9th Cir. 2002); United States

v. Mack, 164 F.3d 464, 474 (9th Cir. 1999); see also United

Miller, like most other cases that address the Second

Amendment, fails to provide much reasoning in support of

its conclusion. We agree that our determination in

Hickman that Miller endorsed the collective rights position

is open to serious debate. We also agree that the entire

subject of the meaning of the Second Amendment

deserves more consideration than we, or the Supreme

Court, have thus far been able (or willing) to give it. This

is particularly so because, since Hickman was decided,

there have been a number of important developments with

respect to the interpretation of the highly controversial

provision: First, as we have noted, there is the recent

Emerson decision in which the Fifth Circuit, after

analyzing the opinion at length, concluded that the

Supreme Court’s decision in Miller does not resolve the

issue of the Amendment’s meaning. The Emerson court

then canvassed the pertinent scholarship and historical

materials, and held that the Second Amendment does

establish an individual right to possess arms — the first

federal court of appeals ever to have so decided.!3 Second,

~_-

States v. Hancock, 231 F.3d 557, 566 (9th Cir. 1999) (holding

that, because the Second Amendment does not create an

individual right to arms, an equal protection challenge to a gun

control law is reviewed “under the rational-basis standard.”). In

the present civil constitutional challenge to a gun control

statute, unlike the criminal cases in which the Second

Amendment was raised along with a number of more specific

defenses, the question of the Second Amendment’s scope is the

principal issue before the court and has been aie briefed

and argued by the parties.

13 The Emerson court examined the government’ s briefs in

Miller, and observed that in that case the government made

alternative arguments: first, that the Second Amendment does

not establish an individual right to possess arms, and second,

that the sawed-off shotgun at issue in Miller bore no reasonable

relationship to militia service. 270 F.3d at 221-24. In the view of

the Emerson court, the Supreme Court’s opinion in Miller

adopted the government’s second argument, and not its first,

which is not an unreasonable conclusion. That conciusion does

S7A

the current leadership of the United States Department of

Justice recently reversed the decades-old position of the

government on the Second Amendment, and adopted the

view of the Fifth Circuit. Now, for the first time, the United

States government contends that the Second Amendment

establishes an individual right to possess arms.!4 The

Solicitor General has advised the Supreme Court that

“(t]he current position of the United States . . . is that the

Second Amendment more: broadly protects the rights of

individuals, including persons who are not members of

any militia or engaged in active military service or

training, to possess and bear their own firearms, subject

to reasonable restrictions . . . .” Opposition to Petition for

Certiorari in United States v. Emerson, No. 01-8780, at 19

n.3. In doing so, the Solicitor General transmitted to the

Court a memorandum from Attorney General John

Ashcroft to all United States Attorneys adopting the Fifth

Circuit’s view and emphasizing that the Emerson court

not, however, lead to the result the Fifth Circuit then reaches.

In our view, the government’s second argument supports either

the collective rights view or the limited individual rights view,

but not the traditional individual rights doctrine that the Fifth

Circuit adopts. Moreover, in an attempt to reconcile its position

with Miller, the Fifth Circuit modifies that doctrine by asserting

that certain undefined types of arms are excluded from the

amendment’s coverage. Miller suggests that the arms protected

by the amendment, if any, are those related to militia service,

but Emerson strays far from that view. While it is unclear

precisely what types of arms the Fifth Circuit would deem

included or excluded, Emerson’s conclusion that the Second

Amendment protects private gun ownership so long as the

weapons have “legitimate use in the hands of private

individuals,” 270 F.3d at 223, represents a far different

approach from that stated in Miller. In our view, the Fifth

Circuit’s decision is incompatible with the Supreme Court

ruling.

14 See Opposition to Petition for Certiorari in United States v.

Emerson, No. 01-8780, at 19 n.3, available’ at

www.usdoj.gov/osg/briefs/2001 /Oresponses/2001-

8780.resp. pdf.

ee

“undertook a scholarly and comprehensive review of the

pertinent legal materials ... ,” although the Attorney

General was as vague as the Fifth Circuit with respect

both to the types of weapons that he believes to be

protected by the Second Amendment, and the basis for

making such determinations. Id., app. A.

The reversal of position by the Justice Department

has caused some turmoil in the lower courts, and has led

to a number of challenges to federal statutes relating to

weapons sales, transport, and possession, including a

heavy volume in the district courts of this circuit. See,

e.g., United States v. Stepney, No. 01-0344, 2002 WL

1460258 (N.D. Cal. July 1, 2002); Jason Hoppin, No Free

Ride For Gun Argument, THE RECORDER, July 25, 2002

(discussing Second Amendment defenses raised by

criminal defendants in Northern District of California

cases). Similar Second Amendment defenses have been

raised by criminal defendants throughout the nation as a

result of the Justice Department’s new position on the

amendment. See Adam Liptak, Revised View of Second

Amendment Is Cited As Defense in Gun Cases, N.Y.

TIMES, July 23, 2002, at Al.

Given the dearth of both reasoned and definitive

judicial authority, a particularly active academic debate

has developed over the scope of the Second Amendment.

Compare, e.g. Eugene Volokh, The Commonplace Second

Amendment, 73 N.Y.U. L. REV. 793 (1998) (advocating

individual rights view) and Sanford Levinson, The |

Embarrassing Second Amendment, 99 YALE L.J. 637 |

(1989) (same) with Michael C. Dorf, What Does the Second

Amendment Mean Today?, 76 CHI.-KENT L. REV. 291,

294 (2000) (advocating collective rights view); Jack N.

Rakove, The Second Amendment: The Highest Stage of

Originalism, 76 CHI.-KENT L. REV. 103, 124 (2000)

(same); and David Yassky, The Second Amendment:

Structure, History and Constitutional Change, 99 MICH. L.

REV. 588 (2000) (same). As a result of the renewed

interest in the issue, the Second Amendment has been the

subject of a number of scholarly symposia. See, e.g., The

Second Amendment: Fresh Looks, 76 CHI.-KENT L. REV.

3-715 (2000); Second Amendment Symposium, 1998

B.Y.U. L. REV. 1-336; A Second Amendment Symposium

Issue, 62 TENN. L. REV. 443-821 (1995). Indeed, Second

Amendment scholarship has become so active that the

scholarship itself has become the subject of study. See

Robert J. Spitzer, Lost and Found: Researching the Second

Amendment, 76 CHI.-KENT L. REV. 349 (2000).

In light of the United States government’s recent

change in position on the meaning of the amendment, the

resultant flood of Second Amendment challenges in the

district courts, the Fifth Circuit’s extensive study and

analysis of the amendment and its conclusion that Miller

does not mean what we arid other courts have assumed it

to mean, the proliferation of gun control statutes both

state and federal, and the active scholarly debate that is

being waged across this nation, we believe it prudent to

explore Appellants’ Second Amendment arguments in

some depth, and to address the merits of the issue, even

though this circuit’s position on the scope and effect of

the amendment was established in Hickman. Having

engaged in that exploration, we determine that the

conclusion we reached in Hickman was correct.!5

B. Appellants Lack Standing to Challenge the Assault

Weapons Control Act on Second Amendment Grounds.

[2] Appellants contend that the California Assault

Weapons Control Act and its 1999 revisions violate their

Second Amendment rights. We unequivocally reject this

contention. We conclude that although the text and

structure of the amendment, standing alone, do not

1S If our review had led us to a conclusion contrary to that

reached in Hickman, we of course would not attempt to overrule

that decision in this opinion. Instead, we would be required to

call for en banc review. See Morton v. De Oliveira, 984 F.2d 289,

292 (9th Cir. 1993) (“[O]nly the court sitting en banc may

overrule a prior decision of the court.”). Because we reaffirm

Hickman here, however, an en banc call by the panel is not

necessary.

conclusively resolve the question of its meaning, when we

give the text its most plausible reading and consider the

amendment in light of the historical context and

circumstances surrounding its enactment we are

compelled to reaffirm the collective rights view we adopted

in Hickman: The amendment protects the people’s right to

maintain an effective state militia, and does not establish

an individual right to own or possess firearms for personal

or other use. This conclusion is reinforced in part by

Millers implicit rejection of the traditional individual

rights position.'6 Because we hold that the Second

Amendment does not provide an individual right to own or

possess guns or other firearms,!’ plaintiffs lack standing

to challenge the AWCA.!8

16 Although Miller is consistent with both the limited individual

rights position and the collective rights view, for reasons we

explain below we continue to adhere to the collective rights view

we adopted in Hickman.

17 We concluded in Hickman that because the individual

plaintiff had no legally protectable interest under the Second

Amendment, he lacked constitutional standing to bring a claim

under that provision. Other courts have addressed Second

Amendment claims on the merits, rather than under the rubric

of standing doctrine. See, e.g., Gillespie, 185 F.3d at 710

(offering an informed discussion not only of the standing issue

but also of some of the amendment’s possible applications).

Although in every case we are required to examine standing

issues first, see, e.g., Scott v. Pasadena Unified School Dist., 306

F.3d 646, 653-54 (9th Cir. 2002) (“We must establish

jurisdiction before proceeding to the merits of the case.”), here

an examination of that question requires us as a first step to

conduct a thorough analysis of the scope and purpose of the

Second Amendment. Only after determining the amendment’s

scope and purpose can we answer the question whether

individuals, specifically the plaintiffs here, have standing to sue.

Thus, as a practical matter, the choice of jurisprudential

approach makes little or no difference. Because we held in

Hickman that the absence of an individually enforceable Second

Amendment right resulted in a lack of standing, we follow our

precedent and decide the case on that basis here.

ee ee

In Hickman, we did not rely on our earlier decision in Fresno

Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir.

1992), that the Second Amendment is not incorporated by the

Fourteenth and does not constrain actions by the states,

although we noted in dictum that had standing existed, Fresno

Rifle would be applicable. We undoubtedly followed that

approach in Hickman because, as noted above, we must decide

standing issues first. Fresno Rifle itself relied on United States v.

Cruikshank, 92 U.S. 542 (1876), and Presser v. Illinois, 116 U.S.

252 (1886), decided before the Supreme Court held that the Bill

of Rights is incorporated by the Fourteenth Amendment’s Due

Process Clause. Following the now-rejected Barron v. Baltimore,

32 U.S. (7 Pet.) 243 (1833) (holding that the Bill of Rights did

not apply to the states), Cruikshank and Presser found that the

Second Amendment restricted the activities of the federal

government, but not those of the states. One point about which

we are in agreement with the Fifth Circuit is that Cruikshank

and Presser rest on a principle that is now thoroughly

discredited. See Emerson, 270 F.3d at 221 n.13. Because we

decide this case on the threshold issue of standing, however, we

need not consider the question whether the Second Amendment

presently enjoins any action on the part of the states.

18 Our concurring colleague, Judge Magill, says that we should

simply decide the case on standing as did Hickman. That is

precisely what we do. Hickman first examined the scope and

purpose of the Second Amendment, and adopted one of the

three principal theories regarding its meaning. It did so in order

to resolve the standing question. In fact, it is impossible to

decide standing without undertaking the type of analysis which

our colleague wishes us to avoid. Only after determining that

the collective view of the Second Amendment was correct was

the Hickman court able to conclude that the individual plaintiff

had no standing. We reach the same conclusion as to the

collective view after conducting a similar analysis and, by virtue

of doing so, we are also able to reach the same conclusion as to

standing.

The difference between our decision and Hickman is twofold.

Since Hickman was decided, there have been extensive

developments in the area of Second Amendment law. We take

account of these developments and, after analyzing them,

conclude that the result reached in Hickman does not change.

1. The Text and Structure of the Second

Amendment Demonstrate that the Amendment’s

Purpose is to Preserve Effective State Militias; That

Purpose Helps Shape the Content of the

Amendment.

[3] The Second Amendment states in its entirety: “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.” U.S. CONST. amend. II. As

commentators on all sides of the debate regarding the

amendment’s meaning have acknowledged, the language

of the amendment alone does not conclusively resolve the

question of its scope. Indeed, the Second Amendment’s

text has been called “puzzling,”!9 “an enigma,”2° and

“baffling”?! by scholars of varying ideological

persuasions.?? What renders the language and structure

Second, Hickman based its conclusion principally on a reading

of Miller that appears to be incorrect: Miller neither adopts nor

rejects the collective view. Because we believe Hickman reached

the correct result on a significant constitutional issue currently

being raised with some frequency in the district courts, we

think it important to ground our circuit law on more solid

constitutional reasoning and analysis. Given the plaintiffs’

direct challenge to Hickman, the imporiance of the issue, and

the extensive continuing judicial debate on the subject, it is,

contrary to our colleague’s view, in no way improper for us to

reconsider Hickman in order to decide whether to (a) simply

follow it without comment, (b) reaffirm it after considering

intervening developments and engaging in a fuller constitutional

analysis, or (c) request en banc review of the case before us.

19 Dorf, supra, at 294.

20 Stephen J. Heyman, Natural Rights and the Second

Amendment, 76 CHI.-KENT L. REV. 237, 238 (2000).

21 L.A. Powe, Jr., Guns, Words and Constitutional Interpretation,

38 WM. & MARY L. REV. 1311, 1360 (1997).

22 Even the learned Professor Tribe has appeared stymied by the

task of construing the Second Amendment. In the first two

editions of his treatise on constitutional law, he advocated the

collective rights position. See, e.g, LAURENCE H. TRIBE,

AMERICAN CONSTITUTIONAL LAW 299 n.6 (2d ed. 1988)

of the amendment particularly striking is the existence of

a prefatory clause, a syntactical device that is absent from

all other provisions of the Constitution, including the nirie

other provisions of the Bill of Rights.23 Our analysis thus

(“[T]he sole concern of the [S]Jecond [A]Jmendment’s framers was

to prevent such federal interferences with the state militia as

would permit the establishment of a standing national army

and the consequent destruction of local autonomy. Thus the

inapplicability of the [Sjecond [A]Jmendment to purely private

conduct . . . comports with the narrowly limited aim of the

amendment as merely ancillary to other constitutional

guarantees of state sovereignty.”). However, in the treatise’s

third edition Professor Tribe tentatively concluded that the

amendment provides “a right (admittedly of uncertein scope) on

the part of individuals,” although he left unresolved many of the

more difficult questions regarding the amendment’s practical

effect, concluding unhelpfully that “the Second Amendment

provides fertile ground in which to till the soil of federalism and

to unearth its relationship with individual as well as collective

notions of rights.” LAURENCE H. TRIBE, 1 AMERICAN

CONSTITUTIONAL LAW 902 n.221 (Foundation Press, 3d ed.

2000). Soon after the third edition of the treatise was sent to

press, Professor Tribe, in concert with another equally puzzled

law school professor, appeared to equivocate even further

regarding the scope of the amendment’s protections. The two

professors abandoned constitutional analysis almost entirely

and retreated to a wholly pragmatic and political, though overly

optimistic, discussion of how the two sides to the bitter Second

Amendment debate could live happily ever after by reaching

reasonable practical accommodations of their sharply

conflicting constitutional views. Laurence H. Tribe & Akhil Reed

Amar, Well-Regulated Militias, and More, N.Y. TIMES, Oct. 28,

1999, at A31.

23 Professor Levinson is of the view that another constitutional

provision includes a similar type of preamble. He argues that

the Copyright and Patent Clause, which states that Congress

has the power “[t]o promote the Progress of Science and useful

Arts, by securing for limited Times to Authors and Inventors the

exclusive Right to their respective Writings and Discoveries,”

U.S. CONST. art. I, § 8, has a structure analogous to that of the

Second Amendment. See Levinson, supra. In our view, this is

ae eee eee

must address not only the meaning of each of the two

clauses of the amendment but the unique relationship

that exists between them.

a. The Meaning of the Amendment's First

Clause: “A Well-Regulated Militia Being

Necessary to the Security of A Free State.”

The first or prefatory clause of the Second

Amendment sets forth the amendment’s purpose and

intent. An important aspect of ascertaining that purpose

and intent is determining the import of the term “militia.”

Many advocates of the traditional individual rights model,

including the Fifth Circuit, have taken the position that

the term “militia” was meant to refer to all citizens, and,

therefore, that the first clause simply restates the second

in more specific terms. See Emerson, 270 F.3d at 235

(“Militia . . . was understood to be composed of the people

generally possessed of arms which they knew how to use,

rather than to refer to some formal military group

separate and distinct from the people at large.”). Relying

on their definition of “militia,” they conclude that the

prefatory clause was intended simply to reinforce the

grant of an individual right that they assert is made by

the second clause. See id. At 236.24 We agree with the

highly doubtful; the first phrase of the Copyright and Patent

Clause appears to set forth the substantive power granted to

Congress, not the limitation on such a power.

24 Other advocates of the traditional individual rights model

appear to read the first clause out of the amendment altogether.

See Volokh, supra, at 807-09; see also Powe, Jr., supra, at 1336

(“[Tjo some, like the National Rifle Association, the preface bears

so little relevance to the right that the preface might as well

have been written in invisible ink.”) For instance, in an article

that has attracted much comment, Professor Volokh points out

that although prefatory clauses like that included in the Second

Amendment are not found elsewhere in the _ federal

constitutional text, they are commonplace in state

constitutions. On the basis of the limited significance of the

prefatory clauses in the state constitutions, the able professor

652

Fifth Circuit in a very limited respect. We agree that the

interpretation of the first clause and the extent to which

that clause shapes the content of the second depends in

large part on the meaning of the term “militia.” If militia

refers, as the Fifth Circuit suggests, to all persons in a

State, rather than to the state military entity, the first

clause would have one meaning — a meaning that would

support the concept of traditional individual rights. If the

term refers instead, as we believe, to the entity ordinarily

identified by that designation, the state-created and -

organized military force, it would likely be necessary to

attribute a considerably different meaning to the first

clause of the Second Amendment and ultimately to the

amendment as a whole.

[4] We believe the answer to the definitional

question is the one that most persons would expect:

“militia” refers to a state military force. We reach our

conclusion not only because that is the ordinary meaning

of the word, but because contemporaneously enacted

provisions of the Constitution that contain the word

“militia” consistently use the term to refer to a state

military entity, not to the people of the state as a whole.

maintains that the prefatory clause in the Second Amendment

should not be read as restricting the right established in the

operative clause. Volokh, supra, at 807-09. However, this

interpretation results in the denial of any significance at all to

the first part of the amendment, in violation of the well-

established canon of interpretation that requires a court,

wherever possible, to give force to each word in every statutory

(or constitutional) provision. United States v. Menasche, 348

U.S. 528, 538-539 (1955); see Marbury v. Madison, 5 U.S. (1

Cranch.) 137, 174 (1803). Moreover, as Professor Dorf, a leading

exponent of the collective rights view, notes, the fact that

preambles are common in state constitutions does not alter the

fact that they are entirely atypical in the federal constitution. To

the contrary, Professor Dorf Says, the first clause of the Second

Amendment ought to be attributed substantial weight, in part

because it is so unusual. Dorf, supra, at 301. We find Professor

Dorf’s argument the more persuasive.

We look to such contemporaneously enacted provisions

for an understanding of words used in the Second

Amendment in part because this is an interpretive

principle recently explicated by the Supreme Court in a

case involving another word that appears in that

amendment — the word “people.”25 That same interpretive

principle is unquestionably applicable when we construe

the word “militia.” “Militia” appears repeatedly in the first

and second Articles of the Constitution. From its use in

those sections, it is apparent that the drafters were

referring in the Constitution to the second of two

government-established and -controlled military forces.

Those forces were, first, the national army and navy,

25 Specifically, in United States v. Verdugo-Urquidez, the Court

stated that the use of the word “people” should have the same

meaning in the Second Amendment as it does throughout the

Constitution:

“(T]he people” seems to have been a 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

Amendments provide that certain rights and powers are

retained by and reserved to “the people.” 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 Amendments, and to whom rights and powers 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 developed sufficient connection with this country to

be considered part of that community.

494 U.S. 259, 265 (1990) (citations omitted).

We note that James Madison, no minor authority on the

constitutional text, noted the arbitrariness of this interpretive

approach. In doing so, in Federalist 37, he observed, “no

language is so copious as to supply words and phrases for every

complex idea, or so correct as not to include many equivocally

different ideas.” THE FEDERALIST NO. 37, at 197 (Clinton

Rossiter, ed., 1961). Nevertheless, we are bound by the views of

the Supreme Court.

674

which were subject to civilian control shared by the

president and Congress, and, second, the state militias,

which were to be “essentially organized and under control

of the states, but subject to regulation by Congress and to

federalization’ at the command of the president.” Paul

Finkelman, “A Well Regulated Militia”: The Second

Amendment in Historical Perspective, 76 CHI.-KENT L.

REV. 195, 204 (2000).

Article I also provides that the militia, which is

essentially a state military entity, may on occasion be

federalized; Congress may “provide for calling forth the

Militia to execute the Laws of the Union, suppress

Insurrections and repel Invasions.” U.S. CONST. art. I, §

8, cl. 15. The fact that the militias may be “called forth”

by the federal government only in appropriate

circumstances underscores their status as_ state

institutions. Article II also demonstrates that the militia

were conceived of as state military entities; it provides

that the President is to be “Commander in Chief of the

Army and Navy of the United States, and of the Militia of

the several States, when called into the actual Service of

the United States.” /d. art. II. § 2, cl. 1 (emphasis added).

Like the Second Amendment, not all of the provisions in

Articles I and II refer specifically to the militia as “the

state militia.” Nevertheless, the contexts in which the term

is used demonstrate that even without the prefatory word,

“militia” refers to state military organizations and not to

their members or potential members throughout these

two Articles.

Our conclusion that “militia” refers to a state

entity, a state fighting force, is also supported by the use

of that term in another of the provisions of the Bill of

Rights. The Fifth Amendment, enacted by the First

Congress at the same time as the Second Amendment,

26 U.S. CONST. art. I, § 8, cls. 12-14 (granting the power “To

raise and support Armies,” “To provide and maintain a Navy,”

and “To make Rules for the Government and Regulation of the

land and naval Forces.”).

aa

provides that a criminal defendant has a nght to an

indictment or a presentment “except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger... . .” U.S. CONST.

amend. V. The inclusion of separate references to the

“land or naval forces” and “the Militia,” both of which may

be in “actual service” to the nation’s defense, indicates

that the framers conceived of two formal military forces

that would be active in times of war — one being the

national army and navy, and the other the federalized

state militia. Certainly, the use of “militia” in this

provision of the Bill of Rights is most reasonably

understood as referring to a state entity, and not to the

collection of individuals who may participate in it.

Not only did the drafters of the Constitution use

“militia” to refer to state military entities, so too did the

drafters of the Constitution’s predecessor document) the

Articles of Confederation. The Articles provided that “every

state shall always keep up a well regulated d

disciplined militia, sufficiently armed and accoutered, and

shall provide and constantly have ready for use, in public

stores, a due number of field pieces and tents, and a

proper quantity of arms, ammunition and camp

equipage.” THE ARTICLES OF CONFEDERATION ~ 6

(1777), in DOCUMENTS OF AMERICAN HISTORY 1112

(Henry Steele Commager ed., 7th ed. 1963). The “well

regulated and disciplined militia[s]” described by the

Articles of Confederation were quite clearly th

institutions established by the individual states. Thus, the

prevailing understanding both before and at the time of

the adoption of the Constitution was that a “militia”

constituted a state military force to which the able-bodied

male citizens of the various states might be called) to

service. |

To determine that “militia” in the Second

Amendment is something different from the state entity

referred to whenever that word is employed in the Ri of

the Constitution would be to apply contradictory

interpretive methods to words in the same provision. The

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interpretation urged by those advocating the traditional

individual rights view would conflict directly with Verdugo-

Urquidez. If the term “the people” in the latter half of the

Second Amendment must have the same meaning

throughout the Constitution, so too must the phrase

“militia.”27

Our reading of the term “militia” as referring to a

state military force is also supported by the fact that in

the amendment’s first clause the militia is described as

“necessary to the security of a free State.” This choice of

language was far from accidental: Madison’s first draft of

the amendment stated that a well-regulated militia was

“the best security of a free country.” Anti-Federalist

Elbridge Gerry explained that changing the language to

“necessary to the security of a free State” emphasized the

primacy of the state militia over the federal standing

army: “A well-regulated militia being the best security of a

free state, admitted an idea that a standing army was a

secondary one.” Yassky, Supra, at 610 (quoting THE

CONGRESSIONAL REGISTER, August 17, 1789). In any

event, as we will explain infra at 32, 45-47, 93-55, it is

clear that the drafters believed the militia that provides

the best security for a free state to be the permanent state

militia, not some amorphous

body of the people as a whole, or whatever random and

informal collection of armed individuals may from time to

time appear on the scene for one purpose or another.

Finally, our definition of “militia” is supported by

the inclusion of the modifier “well regulated.” As an

27 Professor Jack Rakove, an eminent historian, in criticizing

the logic underlying the traditional individual rights position,

observes that “ {pjeople’ is routinely defined [by advocates of the

traditional ii:dividual rights position] intratextually, by reference

to use in other amendments, but ‘militia’ leaps beyond the

proverbial four corners of the document, and is parsed [by those

advocates] in terms of a historically contingent definition of

what the militia has been and must presumably evermore be.”

Rakove, supra, at 124.

70A

historian of the Founding Era has noted, the inclusion of

that phrase “further shows that the Amendment does not

apply to just anyone.” Finkelman, supra, at 234. The

Second Amendment was enacted soon after the August

1786 - February 1787 uprising of farmers in Western

Massachusetts known as Shays Rebellion. What the

drafters of the amendment thought “necessary to the

security of a free State” was not an “unregulated” mob of

armed individuals such as Shays band of farmers, the

modern-day privately organized Michigan Militia, the type

of extremist “militia” associated with Timothy McVeigh

and other militants with similar anti-government views,

groups of white supremacists or other racial or religious

bigots, or indeed any other private collection of

individuals. To the contrary, “well regulated” confirms

that “militia’ can only reasonably be construed as

referring to a military force established and controlled by

a governmental entity.

After examining each of the significant words or

phrases in the Second Amendment’s first clause, we

conclude that the clause declares the importance of state

militias to the security of the various free states within the

confines of their newly’ structured constitutional

relationship. With that understanding, the reason for and

purpose of the Second Amendment becomes clearer.

b. The Meaning of the Amendment’s Second Clause: “The

Right of the People to Keep and Bear Arms, Shall Not Be

Infringed.”

[5] Having determined that the first clause of the

Second Amendment declares the importance of state

militias to the proper functioning of the new constitutional

system, we now turn to the meaning of the second clause,

the effect the first clause has on the second, and the

meaning of the amendment as a whole. The second clause

— “the right of the people to keep and bear Arms, shall

not be infringed” — is not free from ambiguity. We

consider it highly significant, however, that the second

clause does not purport to protect the right to “possess” or

—

se — —

TIA

“own” arms, but rather to “keep and bear” arms. This

choice of words is important because the phrase “bear

arms” is a phrase that customarily relates to a military

function.

[6] Historical research shows that the use of the

term “bear arms” generally referred to the Carrying of

arms in military service — not the private use of arms for

personal purposes.28 For instance, Professor Dorf, after

canvassing documents from the founding era, concluded

that “[olverwhelmingly, the term had a military

connotation.” Dorf, supra, at 314. Our own review of

historical documents confirms the professor’s report.29

°8 The Emerson court points to a few uses of the phrase “bear

arms” that do not refer to military service, primarily in the

Report of the Pennsylvania Minority, prepared by those

members of the Pennsylvania Ratifying Convention who

dissented from that state’s decision to ratify the Constitution.

The Pennsylvania minority report is one of the few

contemporaneous documents to refer to a private right to arms.

However, its view was doubly rejected: first, by the Pennsylvania

convention, which chose not to recommend to the new Congress

any amendment related to the regulation of arms, and second,

by the First Congress, which adopted the Second Amendment

rather than the individual rights proposal of the Pennsylvania

minority.

29 For instance, the Declaration of Independence cites as a

grievance against the British Crown the fact that Great Britain

impressed into the British Navy Americans captured on the high

seas, and forced the prisoners to “bear arms” against their

countrymen. THE DECLARATION OF INDEPENDENCE para. 28

(U.S. 1776). The Continental Congress frequently used the term

when permitting prisoners of war to be released to Britain,

conditioning their release on the prisoners’ “parole not to bear

arms against the United States or their allies during the war.”

14 JOURNALS OF THE CONTINENTAL CONGRESS 826 (July

14, 1779). Similarly, in giving instruction to General

Washington to conduct an exchange of prisoners of war with

Britain, Congress instructed that the exchanged prisoners be

prohibited from active service in the military: “That hostages be

mutually given as a security that the Convention troops and

72K

The Tennessee Supreme Court, in the most significant

judicial decision to construe the term “bear arms,”

concluded that it referred to the performance of a military

function: “A man in pursuit of deer, elk and buffaloes

might carry his rifle every day for forty years, and yet it

would never be said of him that he had borne arms.”

Aymette v. State, 21 Tenn. (2 Humph.) 154 (1840). Other

nineteenth-century judicial opinions evince that same

understanding of the term, as it appears in the

Constitution. See English v. State, 35 Tex. 473, 476 (1872)

(‘The word ‘arms’ in the connection we find it in the

Constitution of the United States refers to the arms of a

militiaman or soldier, and the word is used in its military

sense.”); State v. Workman, 14 S.E. 9, 11 (W. Va. 1891)

(“(IIn regard to the kind of arms referred to in the [Second

Ajmendment, it must be held to refer to the weapons of

warfare to b: used by the militia.”); see also Lucilius A.

Emery, The Constitutional Right to Keep and Bear Arms,

28 HARV. L. REV. 473, 476 (1915) (“The single individual

or the unorganized crowd, in carrying weapons, is not

spoken of or thought of as ‘bearing arms.’ ”). Further, the

Oxford English Dictionary defines “to bear arms” as “to

serve as a soldier, do military service, fight.” 1 OXFORD

ENGLISH DICTIONARY 634 (J.A. Simpson & E.S.C.

those received in exchange for them do not bear arms prior to

the first day of May next.” 18 JOURNALS OF THE

CONTINENTAL CONGRESS 1030 (Nov. 17, 1780).

30 The Fifth Circuit dismisses the Aymette decision because it

believed that the constitutiom4 provision relied on by the

_ Tennessee court granted free white men the right to “keep and

bear arms for their common defense.” According to the Emerson

court, the “common defense” language, which is not present in

the Second Amendment, rendered the interpretation of the

Aymette court inapplicable here. However, the Tennessee court

reached its conclusion primarily because of a different provision

of the state constitution that did not include the “common

defense” language.

Thus, the Fifth Circuit’s attempt to distinguish Aymette fails.

734

Weiner, eds., 2d ed. 1989) (quoted in Yassky, supra, at

619). Thus, the use of the phrase “bear arms” in its

second clause strongly suggests that the right that the

Second Amendment seeks to protect is the right to carry

arms in connection with military service. We also believe it

to be significant that the first version of the amendment

proposed by Madison to the House of Representatives

concluded with an exemption from “bearing arms” for the

“religiously scrupulous.” THE COMPLETE BILL OF

RIGHTS: THE DRAFTS, DEBATES, SOURCES, AND

ORIGINS 169 (Neil H. Cogan ed., 1997) [hereinafter BILL

OF RIGHTS] (“[Njo person religiously scrupulous of

bearing arms, shall be compelled to render military

service in person.”). Historians have observed that “[njo

state at the time, nor any state before, had ever compelled

people to carry weapons in their private capacity.”

Finkelman, supra, at 228. Accordingly, the exemption

from bearing arms for the religiously scrupulous can only

be understood as an exemption from carrying arms in the

service of a state militia, and not from possessing arms in

a private capacity. Otherwise, Madison’s insertion of the

religiously-scrupulous exception in the first draft of the

present amendment would have made no sense at all.3!

31 The use of “bear arms” in Madison’s proposal for a

conscientious objector proposal is identical to its use in a

number of suggested amendments offered by the state ratifying

conventions. In Virginia, for example, George Wythe suggested a

proposed constitutional amendment that, like Madison’s first

draft of the Second Amendment, quite evidently uses “bear

arms” to mean military service: “That any person religiously

scrupulous of bearing arms ought to be exempted, upon

payment of an equivalent to employ another to bear arms in his

stead.” 3 THE DEBATES IN THE SEVERAL STATE

CONVENTIONS ON THE ADOPTION OF THE FEDERAL

CONSTITUTION 659 (Jonathan Elliott ed., 2d ed. 1866)

{hereinafter DEBATES]; see also 1 DEBATES, supra, at 335

(Rhode Island Ratifying Convention Proposed Amendments)

(“That any person religiously scrupulous of bearing arms ought

744

[7] Finally, we address the use of the term “keep” in

the second clause. The reason why that term was

included in the amendment is not clear. The Emerson

court, citing no authority, concludes that “keep” does not

relate to military weapons and therefore the use of the

word supports the position that the amendment grants

individuals the right to keep arms for personal use. 270

F.3d at 232. There appears to be little logic or reason to

that analysis. Arms can be “kept” for various purposes —

military, social, or criminal. The question with respect to

the Second Amendment is not whether arms may be kept,

but by whom and for whet purpose. If they may be kept so

that the possessor is enabled to “bear arms” that are

required for military service, the words would connote

something entirely different than if they may be kept for

any individual purpose whatsoever. In this connection,

some scholars have suggested that “keep and bear” must

be construed together (like “necessary and proper”) as a

unitary phrase that relates to the maintenance of arms for

military service. See Dorf, supra, at 317. That argument

appears to us to have considerable merit. Certainly the

right to keep arms is of value only if a right to use them

exists. The only right to use arms specified in the

Constitution is the right to “bear” them. Thus, it seems

unlikely that the drafters intended the term “keep” to be

broader in scope than the term “bear.” Any other

explanation would run into considerable logical and

historical difficulty. Furthermore, historians have noted

that the right of the states to “keep” arms was a catalyst

for the Revolution — it was the British troops’ attempts to

capture the Massachusetts militia’s arsenal that prompted

Paul Revere’s warning and the battles at Lexington and

Concord to defend the states’ stores of munitions.

Finkelman, supra, at 234. Accordingly, the ability of

states to “keep” arms for military use without external

interference undoubtedly was prominent in the minds of

to be exempted upon payment of an equivalent to employ

another to bear arms in his stead.”).

ener

7SA

many founders. In the end, however, the use of the term

“keep” does not appear to assist either side in the present

controversy to any measurable extent. Certainly, the use

of the term does not detract from the Significance of the

drafters’ decision to protect the right to “bear” arms rather

than to “own” or “possess” them. Thus, it in no way

undercuts the strong implication that the right granted by

the second clause relates to the performance of a military

function, and not to the indiscriminate possession of

weapons for personal use.

c. The Relationship Between the Two

Clauses.

Our next step is to consider the relationship

between the two clauses, and the meaning of the

amendment as a whole. As we have noted, and as is

evident from the structure of the Second Amendment, the

first clause explains the purpose of the more substantive

clause that follows, or, to put it differently, it explains the

reason necessitating or warranting the enactment of the

substantive provision.32 Moreover, in this case, the first

clause does more than simply state the amendment’s

purpose or justification: it also helps shape and define the

meaning of the substantive provision contained in the

second clause, and thus of the amendment itself. This

approach is consistent with that taken by the Supreme

Court regarding the Preamble to the Constitution in a

number of other instances. See, e.g., U.S. Term Limits v.

Thornton, 514 U.S. 779, 821 n31 (1995) (pointing to

language in the Preamble to the Constitution to determine

the nature of representation established in that

document). More important, it is the approach that the

—

32 As Professor John Hart Ely has observed, “here, as almost

nowhere else, the framers and ratifiers apparently opted against

leaving to the future the attribution of purposes, choosing

instead explicitly to legislate the goal in terms of which the

provision was to be interpreted.” ELY, DEMOCRACY AND

DISTRUST 95 (1980).

Supreme Court has_ specifically declared must be

employed when seeking to determine the meaning of the

Second Amendment.33

[8] When the second clause is read in light of the

first, so as to implement the policy set forth in the

preamble, we believe that the most plausible construction

of the Second Amendment is that it seeks to ensure the

existence of effective state militias in which the people

may exercise their right to bear arms, and forbids the

federal government to interfere with such exercise. This

conclusion is based in part on the premise, explicitly set

forth in the text of the amendment, that the maintenance

of effective state militias is essential to the preservation of

a free State, and in part on the historical meaning of the

right that the operative clause protects — the right to bear

arms. In contrast, it seems reasonably clear that any fair

reading of the “bear Arms” clause with the end in view of

“assuring . . . the effectiveness oi” the state militias

cannot lead to the conclusion that the Second

Amendment guarantees an individual right to own or

possess weapons for personal and other purposes. See,

e.g., Gillespie v. City of Indianapolis, 185 F.3d 693, 710-11

(7th Cir. 1999) (adopting the collective rights theory and

concluding that firearms possession related to militia

service represents too attenuated a connection to the

purpose and objective of the Second Amendment to

support a claim of an individual right).

In the end, however, given the history and vigor of

the dispute over the meaning of the Second Amendment’s

language, we would be reluctant to say that the text and

structure alone establish with certainty which of the

various views is correct. Fortunately, we have available a

33 As we have noted, supra p. 14, the Miller Court stated: “With

the obvious purpose to assure the continuation and render

possible the effectiveness of [state militias] the declaration and

guarantee of the Second Amendment were made. It must be

interpreted and applied with that end in view.” 307 U.S. at 178

(emphasis added).

774

number of other important sources that can help us

determine whether ours is the proper understanding.

These include records that reflect the historical context in

which the amendment was adopted, and documents that

contain significant portions of the contemporary debates

relating to the adoption and ratification of the

Constitution and the Bill of Rights. We now examine those

sources, all of which ultimately point to the same result to

which our analysis of the text leads us.

2. The Historical Context of the Second Amendment

and the Debates Relevant to its Adoption

Demonstrate that the Founders Sought to Protect

the Survival of Free States by Ensuring the

Existence of Effective State Militias, Not by

Establishing An _ Individual Right to Possess

Firearms.

An examination of the historical context

Surrounding the enactment of the Second Amendment

leaves us with little doubt that the proper reading of the

amendment is that embodied in the collective rights

model. We note at the outset that the interpretation of the

Second Amendment lends itself particularly to historical

analysis. The content of the amendment is restricted to a

narrow, specific subject that is itself defined in narrow,

specific terms. Only one other provision of the Bill of

Rights is similarly composed — the almost never used

Third Amendment.** The other eight amendments all

employ broad and general terms, such as “no law

respecting” (the Free Exercise Clause), “unreasonable”

(searches and seizures), “due process of law” (for

deprivations of life, liberty, and property), “cruel and

unusual” (punishments). Even the Ninth and Tenth

Amendments speak vaguely of “other” rights or

unenumerated “reserved” rights. The use of narrow,

3# The Third Amendment states: “No Soldier shall, in time of

peace be quartered in any house, without the consent of the

Owner, nor in time of war, but in manner prescribed by law.”

specific language of limited applicability renders the task

of construing the Second Amendment somewhat different

from that which we ordinarily undertake when we

interpret the other portions of the Bill of Rights.

What our historical inquiry reveals is that the

Second Amendment was enacted in order to assuage the

fears of Anti-Federalists that tiie new federal government

would cause the state militias to awophy by refusing to

exercise its prerogative of arming the state fighting forces,

and that the states would, in the absence of the

amendment, be without the authority to provide them

with the necessary arms. Thus, they feared, the people

would be stripped of their ability to defend themselves

against a powerful, over-reaching federal government. The

debates of the founding era demonstrate that the second

of the first ten amendments to the Constitution was

included in order

to preserve the efficacy of the state militias for the people’s

defense — not to ensure an individual right to possess

weapons. Specifically, the amendment was enacted to

guarantee that the people would be able to maintain an

effective state fighting force — that they would have the

right to bear arms in the service of the state.

a. The Problem Of Military Power in the Colonies and

Confederation.

/ A significant motivation for the American colonists’

break from Britain was a distrust of the standing army

maintained by the Crown on American shores. Dorf,

supra, at 308. Indeed, one of the principal complaints

listed in the Declaration of the Independence was that

King George III “has kept among us, in times of peace,

Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and

superior to the Civil power.” THE DECLARATION OF

INDEPENDENCE para. 2 (U.S. 1776). Standing armies in

the colonial era were looked on with great skepticism:

“The sentiment of the time strongly disfavored standing

armies; the common view was that adequate defense of

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country and laws could be secured through the Militia.”

Miller, 307 U.S. at 179. Even after the break with Britain,

a large portion of Americans had grave reservations about

establishing a permanent standing army.35 Nevertheless,

many other newly independent Americans expressed the

need to strengthen the federal fighting force, even in

peacetime. During the brief period in which the Articles of

Confederation were in effect, from 1781-1789, relatively

weak federal authority existed, particularly as related to

military matters. The bulwark of the national defense was

the state militias, which bodies the states could

voluntarily contribute to the services of the Confederation.

The states retained the sole power to arm and otherwise

to maintain their respective militias. The Articles of

Confederation specifically granted that power (and

obligation) to the states: “[E]very state shall always keep

up a well regulated and disciplined militia, sufficiently

armed and accoutered, and shall provide and constantly

have ready for use, in public stores, a due number of field

pieces and tents, and a proper quantity of arms,

ammunition and camp equipage.” THE ARTICLES OF

CONFEDERATION, Supra, art. 6. It is highly significant

that prior to the enactment of the Constitution, the

prevailing understanding as expressed in the governing

charter then in effect was that

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