This "sneak preview" excerpt from the forthcoming updated edition of "The Long List of 'Gun Control' Myths": talk.politics.guns' Official Pro-Gun FAQ is ©2001 by Kenneth E. Barnes, and is featured on saf.org & ccrkba.org by courtesy of the author, who invites comments at usvemerson@tpgfaq.org From Dave LaCourse: Ken has done everyone, including Dr. Emerson, his attorneys and myself, a huge favor with this great, independent analysis. To view more of Ken's excellent work, I urge you to visit www.faqs.org by visiting the Newsgroup Talk (Part of the Big Eight on the page) and then go to talk.politics.guns for more information. Have fun there at www.faqs.org and also enjoy his sneak preview article here. -- APPENDIX X. "There Must Be A Limit": U.S. v. Emerson And The Federal Courts "There must be a limit to government regulation on lawful firearm possession. This statute exceeds that limit, and therefore it is unconstitutional."-- U.S. District Judge Sam R. Cummings, United States v. Emerson, Federal Supplement 2nd Series v.46 p.598 (Northern District of Texas, April 7, 1999) "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. Constitution, Amendment II   Pro-gun voters in Beaumont, Texas, angered like their compatriots across the nation by the 1994 Clinton Crime Bill's ban on so-called "semi-automatic assault weapons," joined in the nationwide wave of anti-incumbent sentiment in November 1994 to tell then-House Judiciary Committee Chairman Jack Brooks (D-TX) to hit the road. Brooks, a powerful Democrat with an ordinarily pro-gun-rights voting record, had voted in favor of the Clinton Crime Bill that year, despite the gun ban language, and with that vote his 42 year career in Congress would come to an end, even as a "Republican revolution" overthrew four decades of Democratic Party hegemony in the House, and brought a new Republican governor to the Texas capitol, George W. Bush. But amongst all the legislative overreaching contained in the Crime Bill, a little-noticed provision authored by Sen. Paul Wellstone (D-MN) and offered by Brooks, added when the House Judiciary Committee rewrote Rep. Patricia Schroeder's (D-CO) "Violence Against Women Act Of 1993" (H.R. 1133) may end up as Chairman Brooks' biggest Second Amendment legacy. The "Domestic Violence Firearm Prevention Act," which was added by Brooks' committee in House Report 103-395 and later became part of the 1994 Crime Bill, was overshadowed by the furor over the "assault weapons" issue, and would not be nearly so controversial as a similar, more sweeping measure passed in the Republican-controlled Congress in 1996 (see 922(g)(9), below). In a curious irony, however, this obscure federal gun law may end up being more important for the future of the right to keep and bear arms (RKBA) than any of the others. Enacted as Title 18 U.S. Code Section 922(g)(8) on September 13, 1994, the law reads (in relevant part): (a) It shall be unlawful - (1) for any person - [***] (8) who is subject to a court order that - (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury[***] to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. The significance of this law became manifest in early 1999 in Brooks' home state of Texas, when the law he put forward was overturned as unconstitutional by a U.S. district judge, in a case which may at long last induce the U.S. Supreme Court to rule definitively on the meaning of the Second Amendment. On February 26, 1999, U.S. District Judge Sam Cummings of Lubbock, first appointed to the federal bench in 1987 by President Ronald Reagan, dismissed an indictment charging a San Angelo, TX family physician, Dr. Timothy Joe Emerson, with violating 18 U.S. Code Section 922(g)(8), ruling that the law violated the Second and Fifth Amendments of the United States Constitution. Judge Cummings' decision in the case of U.S. v. Emerson marked the first time in over sixty years that a federal law had been held to violate the Second Amendment. In the only previous such ruling, the 1938 case of U.S. v. Miller, U.S. District Judge Heartsill Ragon of Fort Smith, AR dismissed the indictment of two bootleggers, Jack Miller and Frank Layton, for violating the newly enacted National Firearms Act of 1934 (NFA '34, see below), ruling that the law violated the Second Amendment. The pair had transported a short-barreled shotgun across state lines without the required registration and tax stamp. The U.S. Supreme Court heard the government's appeal of the case and reinstated the indictment, but the case's namesake defendant Miller had died by the time the case reached the high court, having been shot to death in what was reportedly a "business dispute," and neither the defendants nor their attorney made an appearance before the justices. The Miller case, decided on the narrow issue of whether a short-barreled shotgun constituted "arms" under the meaning of the Second Amendment, established what has come to be known in subsequent lower court decisions as the "Miller test," which requires that the Second Amendment be construed to require a "reasonable relationship to the preservation or efficiency of a well-regulated militia" before any constitutional violation can be shown. In Miller, the Supreme Court held that because no evidence had been presented that a short-barreled shotgun had any such relationship to a militia, the lower court had no basis for its decision that the NFA was unconstitutional. In addition to the lack of evidence in the lower court record, Judge Ragon had also not cited any prior precedent in his memorandum decision, though if he had, it might have somewhat clarified the matter, since prior Supreme Court precedent in U.S. v. Cruikshank and Presser v. Illinois (see below) had held that the Second Amendment is a limitation on the powers of Congress, and the law in question was the first major federal "gun control" law. The surviving defendant, Layton, later pleaded guilty to the charges and was sentenced to five years probation by Judge Ragon after the case was returned to the district court for further proceedings. In U.S. v. Emerson, Judge Cummings' treatment of the Miller precedent conformed to the analysis that many contemporary legal scholars have taken of the case, including the observation that "Miller might have had a tenable argument had he been able to show that he was keeping or bearing a weapon that clearly had a potential military use." The question is whether the "Miller test" means that the "arms" must have a "reasonable relationship to the preservation or efficiency of a well-regulated militia," or, as most other lower courts have held since Miller, that the "keep[ing] and bear[ing]" of the arms is what must meet the "Miller test" requirement. If it is only the "arms" that must meet the "Miller test," Dr. Emerson's case almost certainly does, since the "arm" he was actually charged with "keeping" illegally is a Beretta 9mm pistol, the standard sidearm of the U.S. armed forces and the military forces of other North Atlantic Treaty Organization countries. If, however, the "Miller test" is read to hold that the Second Amendment protects only "keep[ing] and bear[ing]" of arms that has a "reasonable relationship to the preservation or efficiency of a well-regulated militia," as most other federal courts have held, the "right of the people" in the Second Amendment becomes equivalent to "the right of the militia" or even "the right of the state," a so-called "collective" right, not an individual one. It is interesting to note that the brief for the United States in Miller, the only brief submitted, had argued for an exclusively "militia only" interpretation of the Second Amendment, but the Supreme Court declined to adopt such a reading, instead relying upon the government's alternative argument that the NFA did not violate the Second Amendment because it affected only weapons suitable to crime, not those with a potential legitimate use for the "common defense". The Supreme Court in Miller, wrote Judge Cummings, "did not answer the crucial question of whether the Second Amendment embodies an individual or collective right to bear arms." Although acknowledging that "its holding has been used to justify many previous lower federal court rulings circumscribing Second Amendment rights," Cummings wrote, "the Court in Miller simply chose a very narrow way to rule on the issue of gun possession under the Second Amendment, and left for another day further questions of Second Amendment construction." Citing extensively the body of legal and historical research that has been published in recent years supporting the individual right "Standard Model" of the Second Amendment, Judge Cummings' decision found on the basis of textual, historical, and structural analysis that the Second Amendment protects an individual right. While acknowledging that precedent in other U.S. Circuit Courts of Appeal tends to disagree with the "individual right" interpretation, the numerous precedents from other federal courts misinterpreting Miller are incorrectly decided, Judge Cummings implies, because "[i]t is difficult to interpret Miller as rendering the Second Amendment meaningless as a control on Congress." When Timothy Emerson bought his 9mm Beretta on October 10, 1997, he answered truthfully "no" to the question on BATF "Firearms Transaction Record" Form 4473 about whether he was subject to a restraining order, implicitly acknowledging he had read the printed notice on the back of the form that "firearms may not be sold to or received by persons subject to a court order" restraining them from "harassing, stalking, or threatening an intimate partner or child of such partner." This specific language concerning domestic violence restraining orders made no reference to the fact that under existing federal law, in addition to it being illegal for a person subject to such an order to buy or receive firearms or ammunition, it is also a crime for them to "possess in or affecting commerce, any firearm or ammunition." The version of Form 4473 Emerson signed was arguably somewhat contradictory on this point, since on the front of the form a notice in bold type warns that a person who answers "yes" to any of the listed questions, including the question on domestic violence restraining orders, "IS PROHIBITED FROM PURCHASING OR POSSESSING A FIREARM." At the time he bought the pistol, even if the form had unambiguously stated that federal law required persons under a domestic violence restraining order to surrender their firearms, Emerson was under no such order and the notice did not apply to him. Within a year, though, Dr. Emerson's life would change for the worse. On August 28, 1998, Timothy Emerson's wife Sacha filed for a divorce, and in a September 4, 1998 hearing on the divorce she requested that the court issue a temporary restraining order against him. Dr. Emerson, who represented himself before the court, had allegedly threatened over the telephone to kill his adulterous wife's new boyfriend. It was never alleged prior to the time Dr. Emerson was later arrested that he had threatened any harm to his wife or daughter, and the restraining order which was issued, wrote Judge Cummings, was "a form order frequently used in Texas divorce procedure" that "sought to enjoin Emerson from engaging in various financial transactions to maintain the financial status quo and from making threatening communications or actual attacks upon his wife during the pendency of the divorce proceedings." There were in the hearing, Judge Cummings wrote, "no particularized findings" of fact by the court regarding any past improper conduct on Dr. Emerson's part. Also, and most importantly, wrote Judge Cummings, "when Emerson was made subject to the restraining order telling him to not harass his wife, Emerson could not have known of the requirement to relinquish his gun unless the presiding judge issuing the order told him. In this case, the state district judge did not tell Emerson about the requirement. Emerson's attorney did not tell him either, because Emerson did not have a lawyer. The fact that the restraining order contained no reference to guns may have led Emerson to believe that since he complied with the order, he could carry on as before." Judge Cummings found that Emerson's Fifth Amendment due process rights had been violated as a result of his being placed in jeopardy of being prosecuted for a federal crime for conduct which he had received no notice from the court would become unlawful upon issuance of the order, under a law which infringed his Second Amendment right without requiring a particular finding of fact by the court justifying the basis for the infringement. According to press reports, however, Dr. Emerson violated the restraining order two months later, on November 16, 1998, when his wife and daughter showed up at his office to retrieve an insurance payment. The couple got into an argument, which escalated when Timothy Emerson allegedly took his 9mm Beretta pistol out of a drawer, brandished it, and demanded that his wife and daughter leave. On November 24, 1998 a federal grand jury indicted Dr. Emerson on five counts of violating 18 U.S. Code Section 922(g)(8), one for possession of the 9mm Beretta he had at his office, and four for pawning a Poly Technologies .308 M-14S, a .308 caliber SKS, a .30-06 caliber M-1 Garand, and another 9mm pistol in the previous few months. Government prosecutors moved before trial to dismiss charges on all but the first count, and Judge Cummings granted the motion. Judge Cummings dismissal of the remaining indictment against Dr. Emerson in February of 1999 at first drew little attention. Only when his initial opinion in the case was published, on March 30, 1999, did the case attract national media exposure, and then only to a limited degree. A final version of the opinion was published April 7, 1999. The first print story that ran April 1, 1999 on the AP wire was written by Chris Newton of the Austin American-Statesman, and was published April 2, 1999 in that paper on p.B7, and in the Houston Chronicle in slightly edited form on p.A30. A second followup wire story, also by Newton, ran April 2, and featured reactions to the ruling from NRA research director William Parkerson; Handgun Control, Inc. spokesman Brian Morton; gun rights attorney Stephen P. Halbrook, and former Texas State Sen. Jerry Patterson, author of Texas' concealed carry law. This story was picked up by some small papers like the Bergen (NJ) Record and the Vero Beach (FL) Press Journal on April 3, with the Bergen Record using it with only the Halbrook quote, and the Press Journal chopping out all the quotes. The story finally made major papers on April 4. The Washington Post ran the story on p.A10, editing out only the comment by NRA's Parkerson, and giving HCI's Morton the last word. The Boston Globe ran the story on p.A9, also editing out only the NRA comment, and giving HCI spokesman Morton an extensive last word. The Globe article also contains a factual error not present in original AP story, with the law Judge Cummings struck down described in the first paragraph as "an unusual Texas law" when it was in fact a federal gun law. Once the case popped up on the national radar screen, it was clear to both sides in the "gun control" debate that the government's appeal of the Emerson case to the U.S. Circuit Court of Appeals for the Fifth Circuit would be critical. A flurry of "friend of the court" amicus briefs soon descended on New Orleans, where a three judge panel of the Circuit Court, which has jurisdiction over Texas, Louisiana, and Mississippi, had announced it would hear oral arguments in the case on June 13, 2000. A brief supporting the government's case signed by a 52-member "Ad Hoc Group of Law Professors And Historians" and submitted by David Yassky of Brooklyn Law School was opposed by a brief submitted by Nelson Lund of George Mason University for "Academics for the Second Amendment" and signed by 124 academics, mostly law professors, with professors of economics, political science, history, criminal justice, sociology and others all supporting the interpretation of the Second Amendment as protecting an individual right, a view which has been termed the "Standard Model" by its proponents. The briefs for Dr. Emerson's defense, as well as an amicus brief filed in support of Emerson by the Attorney General's office of the State of Alabama, while supportive of an individual rights viewpoint of the Second Amendment, urged an interpretation of the law which requires some court finding of past abuse or future dangerousness in order for the statute to apply. This, in the words of Dr. Emerson's public defender, Timothy Crooks, would "avoid the need to decide the knotty constitutional questions," such as the meaning of the Second Amendment. However much the Fifth Circuit may want to use such reasoning in order to avoid ruling on the Second Amendment, the government's reply brief explicitly rejected such an interpretation, and insists upon a reading that is similar, if not identical to the reading given to the statute by Judge Cummings. The government's briefs in effect argue that the judges of the Fifth Circuit should disregard the plain language of the Second Amendment's "the right of the people to keep and bear arms shall not be infringed" while paying close attention to the plain language of a statute which implies (by its use of "or") that a court order which "by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury" without any "finding that such person represents a credible threat to the physical safety of such intimate partner or child" (such as the pro forma order issued against Dr. Emerson) is sufficient to treat the person subject to the order like a felon when it comes to their possession of firearms. At oral arguments, the three judges reportedly questioned assistant U.S. attorney William B. Mateja with some skepticism about the government's interpretation of the Second Amendment. "You are saying that the Second Amendment is consistent with a position that you can take guns away from the public?" said Senior Judge William L. Garwood, seeming incredulous about the government's position. "You can restrict ownership of rifles, pistols and shotguns from all people? Is that the position of the United States?" "Yes," said Mateja, arguing for the "collective right" theory of the Second Amendment. Judge Garwood, who was appointed to the Fifth Circuit by President Reagan in 1981, pressed Mateja again on just who "the people" are in the Second Amendment. "Is it the position of the United States that persons who are not in the National Guard are afforded no protections under the Second Amendment?" "Exactly," said Mateja. But even National Guard members who have guns in their private homes aren't protected by the Second Amendment, explained Mateja, arguing the Amendment into a "states rights" nullity. "The weapon in question must be used in the National Guard," Mateja said in response to another question by Judge Garwood. Judge Harold DeMoss, appointed to the Fifth Circuit by President Bush in 1991, questioned the rather tenuous "interstate commerce" connection required by the law. "I have a 16 gauge shotgun in my closet at home," he said. "I have a 20-gauge shotgun. I also have a 30-caliber rifle at home. Are you saying these are 'in or affecting interstate commerce?'" Mateja said "Yes." Though the Commerce Clause argument was only raised briefly by the defense for purposes of later appeals, Judge DeMoss' line of questioning was reminiscent of a 1993 Fifth Circuit ruling holding the federal "Gun Free School Zones Act" unconstitutional on a Commerce Clause basis. That decision, written by Judge Garwood, was upheld in 1994 by the Supreme Court in U.S. v. Lopez (see below). As an aside in Lopez, Judge Garwood had footnoted the seminal "Standard Model" argument of the University of Texas' Sanford Levinson in "The Embarrassing Second Amendment" as an example of why "this orphan of the Bill of Rights" should be taken seriously. Judge DeMoss reportedly wasn't the only panel member to admit to guns in his closet. Judge Robert M. Parker, appointed to the Fifth Circuit by President Clinton in 1994, jokingly confessed to Mateja, "I don't want you to lose any sleep over this, but Judge Garwood and I between us have enough guns to start a revolution in most South American countries." A decision by the three-judge panel is expected soon, after which the losing side may have the opportunity to ask for an en banc rehearing of the appeal before the full court. The losing side could also appeal the case to the U.S. Supreme Court, and while the Supreme Court doesn't necessarily have to agree to hear the appeal, consideration by the high court seems likely, especially if the Fifth Circuit upholds Judge Cummings' decision on Second Amendment grounds. A conflict would then need to be resolved between the prior "collective rights" precedents in other federal courts (see below) and any ruling by the Fifth Circuit favorable to an "individual rights" reading of the amendment.   EXISTING FEDERAL COURT PRECEDENT (see graphic)   The Fifth Circuit is but one of eleven numbered U.S. Circuit Courts of Appeals, which along with the D.C. Circuit and Federal Circuit, hear appeals of lower federal court decisions. The different Circuit Courts of Appeal have authority over the federal district courts in their region of the country, and are in principle bound by the prior precedent established by the U.S. Supreme Court, which can review their decisions upon appeal. If the decisions of two or more Circuits are in conflict, it is up to the Supreme Court to resolve the conflict by ruling on how the U.S. Constitution applies to the case. The existing precedent in other Circuits, aside from the Fifth Circuit, has attempted to apply the Supreme Court's sketchy guidance from the Miller case, and has overwhelmingly ruled against individuals who have brought Second Amendment challenges to various RKBA issues, including federal "gun control" laws. Most recently, challenges to Title 18 U.S. Code 922(g)(8), banning guns for persons under domestic violence restraining orders, and 922(g)(9), banning guns for persons convicted of domestic violence misdemeanors, have sustained Second and Fifth Amendment challenges in cases which provide an insight into the existing precedents in each circuit regarding the Second Amendment.   FIFTH CIRCUIT The Fifth Circuit has jurisdiction over Texas, Louisiana and Mississippi. U.S. v. Williams, Federal Reporter 2nd Series v.446 p.486, U.S. Court of Appeals, 5th Cir. (1971) U.S. v. Johnson, Federal Reporter 2nd Series v.441 p.1134, U.S. Court of Appeals, 5th Cir. (1971) As noted by Judge Cummings in Emerson, the meaning of the Second Amendment is "an issue of first impression within the Fifth Circuit," meaning an issue that the Fifth U.S. Circuit Court of Appeals has never ruled on. Two previous cases decided by the Fifth Circuit Court of Appeals, U.S. v. Williams and U.S. v. Johnson, both rejected without discussion claims that a federal gun law violated the Second Amendment and cited the Supreme Court's Miller decision, but both of these cases involved individuals charged with possessing short-barreled shotguns, the exact same circumstances as Miller, and so the Circuit Court was bound by the Supreme Court's prior precedent. NOTE: This Fifth Circuit decision in U.S. v. Johnson should not be confused with another more widely cited RKBA case, also called U.S. v. Johnson, Federal Reporter 2nd series v.497 p.548, U.S. Court of Appeals 4th Cir. (1974), which was decided by the U.S. Court of Appeals in the Fourth Circuit (see U.S. v. Henson, 4th Cir., below for discussion). A couple of other district court decisions within the Fifth Circuit include: U.S. v. Spruill, Federal Supplement 2nd series v.61 p.587, (Western District of Texas, Aug. 13, 1999) The district court in this case observed that "five Circuit Courts of Appeal have determined that the Second Amendment protects only a collective right," and cited Gillespie v. City of Indianapolis (see 7th Cir., below), Hickman v. Block (9th Cir., see U.S. v. Napier, 6th Cir., below for discussion), Love v. Pepersack (see U.S. v. Henson, 4th Cir., below), U.S. v. Warin (see U.S. v. Vishnich, 6th Cir., below), Cases v. U.S. (1st Cir., see U.S. v. Henson, 4th Cir., below for discussion). After a brief analysis of the U.S. Supreme Court's ruling in U.S. v. Miller, the court expressed the hope that "[s]omeday there will undoubtedly be a clear cut opinion from the Supreme Court on the Second Amendment. Without more at this time, however, the Court chooses to follow the majority path and here holds that the Second Amendment does not prohibit the federal government from imposing some restrictions on private gun ownership," an implicit recognition of the controversy over the Amendment's meaning, and a holding not inconsistent with a qualified but individual right.   U.S. v. Boisdore, CA No. 98-091 SECTION "T" (5), 1999 U.S. Dist. LEXIS 16669 (Eastern District of Louisiana, Oct. 26, 1999) In this district court case, a duck poacher and his son were charged with several fish and game violations, including hunting over bag limit, using bait, and using illegal weapons and shot (a shotgun holding more than the legal three rounds, and using lead, rather than bismuth or steel shot). In appealing their conviction and sentence, the defendants cited U.S. v. Emerson to an unsympathetic Louisiana judge, who wrote of their Second Amendment argument: "Even assuming that the right in question is an individual one, it is unnecessary for this Court to cite authorities when it states that a person convicted of a gun-related offense can be deprived of his or her right to keep and bear arms." Responding to another unavailing argument raised by the appeal, the court added parenthetically: "The Court would be interested in reading whatever constitution it is that gives Boisdore the 'right to hunt.'" The defendants were evidently misinformed by anti-gun politicians who invoke the Second Amendment when appealing for votes from hunters and sportsmen. As someone once said, "it ain't about duck hunting." The district court, however, has no such excuse for snide comments that ignore the Ninth Amendment and "deny or disparage" rights not enumerated in the Constitution. A "right to keep and bear arms" or a "right to hunt" cannot be used to justify the defendants' illegal actions, but it should be obvious that if a right listed in the Bill of Rights can be "interpreted away," as has happened in much recent case law on the Second Amendment, the Ninth Amendment's interpretive rule can do little to protect the rest of the Bill of Rights (and countless other "rights of the people") from being similarly deconstructed.   OTHER FEDERAL COURT PRECEDENT D.C. CIRCUIT The D.C. Circuit has jurisdiction over the District of Columbia, and as a result much of its caseload consists of challenges to the actions of the administrative and regulatory agencies of the federal government's executive branch. Current U.S. Supreme Court Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg all served on the U.S. Court of Appeals for the D.C. Circuit before their nominations to the high court. Mr. Justice Scalia served from 1982 to 1986, before being nominated to the U.S. Supreme Court in 1986 by President Ronald Reagan. Mr. Justice Thomas served from 1990 to 1991 before being nominated to the U.S. Supreme Court by President George Bush in 1991. Ms. Justice Ginsburg served from 1980 until 1993, when she was nominated to the U.S. Supreme Court by President Bill Clinton.   Fraternal Order of Police v. United States, Federal Reporter 3rd series v.173 p.898, U.S. Court of Appeals, D.C. Circuit, (Apr. 16, 1999) In this case, challenging the constitutionality of Title 18 U.S. Code Section 922(g)(9), the U.S. Court of Appeals for the D.C. Circuit's opinion highlighted the fact that federal law would now allow felons who have had their rights restored to carry a gun in an official capacity, but would not do so for persons who have misdemeanor convictions for domestic violence. Despite calling this "irrational" and an "inversion" of the usual classification of crimes, since it treats the lesser offense more harshly, the D.C. Circuit held that Congress "might have found" that felons were adequately excluded from carrying official firearms under existing laws and hiring practices, but persons with domestic violence misdemeanors were not, and so required a more severe restriction in federal law. In a passage dealing with the FOP's Second Amendment claim, the D.C. Circuit describes what it terms the "Miller test," derived from the U.S. Supreme Court's "notoriously scant" guidance on the interpretation of the Second Amendment in U.S. v. Miller. "Since Miller dealt with Congress's authority to prohibit ownership of short-barreled shotguns, FOP could have challenged the test's applicability by arguing that it serves only to separate weapons covered by the [Second] amendment from uncovered weapons. It [FOP] did not do so, and we thus assume the test's applicability." The "Miller test" wrote the court "appears in some sense to invert the commercial speech test, which requires the government to show that legislation restricting such speech bears a reasonable relationship to some 'legitimate' or 'substantial' goal." In other words, it appears to the court that the "Miller test" shifts the burden of proof by requiring a plaintiff challenging a federal gun law to prove that their "keeping and bearing arms" has some "reasonable relationship to the preservation and efficiency of a well-regulated militia" rather than, as with commercial speech, requiring that the government prove that a gun law furthers some 'legitimate' or 'substantial' government interest that outweighs the plaintiff's liberty interest protected by the Bill of Rights. This analysis seems to agree with a reading of Miller as implying that weapons having military usefulness are better protected under the Second Amendment than other guns, just as "political speech" has been held to be more strongly protected in First Amendment jurisprudence than "commercial speech".   FIRST CIRCUIT The First Circuit has jurisdiction over Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico. Current U.S. Supreme Court Justices Stephen Breyer and David Souter both served on the U.S. Court of Appeals for the First Circuit before their nominations to the high court. Mr. Justice Breyer served from 1980 to 1994 on the U.S. Court of Appeals for the First Circuit, and was Chief Judge of the Circuit from 1990 to 1994 before his nomination to the U.S. Supreme Court in 1994 by President Bill Clinton. Mr. Justice Souter served briefly on the U.S. Court of Appeals for the First Circuit before being nominated to the U.S. Supreme Court by President George Bush in 1990. Cases [Velazquez] v. U.S., Federal Reporter 2nd series v.131 p.916, U.S. Court of Appeals, 1st Cir. (1942) (see U.S. v. Henson, 4th Cir., below, for discussion) Thomas v. Members of City Council of Portland, Federal Reporter 2nd series v.730 p.41, U.S. Court of Appeals 1st Cir. (1984) (see Gillespie v. City of Indianapolis, 7th Cir., below, for discussion)   SECOND CIRCUIT The Second Circuit, which has jurisdiction over New York, Connecticut, and Vermont had until recently developed very little jurisprudence on the Second Amendment, and has heard no cases dealing with the applicability of the Second Amendment to Title 18 U.S. Code Sections 922(g)(8) or 922(g)(9). The major Second Amendment precedent in this Circuit is U.S. v. Scanio, 1998 U.S. App. LEXIS 29415 (1998), which cited the Supreme Court's U.S. v. Miller decision for the proposition that "the Second Amendment right to keep and bear arms is meant solely to protect the right of the states to keep and maintain armed militia," and citing the brief footnote in the Supreme Court's Lewis v. U.S. decision (see below) wrote that "federal restrictions on the use of firearms by individuals do not 'trench upon any constitutionally protected liberties.'" The Supreme Court didn't actually say anything nearly so broad in these cases, however, and thus the Second Circuit continues the misrepresentations and distortions of Miller and the Second Amendment by federal courts uncomfortable with the implications of taking the "embarrassing Second Amendment" seriously. As if to remove any doubt about the direction they now wish to take, the Second Circuit also cited the 6th Circuit's precedent in U.S. v. Warin to say that "[i]t is clear that the Second Amendment guarantees a collective rather than an individual right." Previously, the Second Circuit had merely asserted that "the right to possess a gun is clearly not a fundamental right," in commentary in U.S. v. Toner, Federal Reporter 2nd Series v.728 p.115 (1983), and even as recently as Lawson v. Kirschner, 1998 U.S. App. LEXIS 14776 (1998) [which cited U.S. v. Miller and Toner] the Second Circuit did not foreclose the possibility of a qualified, but individual right (albeit a right subject to the restrictions permitted under the so-called "Miller test").   THIRD CIRCUIT The Third Circuit has jurisdiction over Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands. U.S. v. Tot, Federal Reporter 2nd series v.131 p.261, U.S. Court of Appeals 3rd Cir. (1942) (see U.S. v. Henson, 4th Cir., below, for discussion) Eckert v. City of Philadelphia, Federal Reporter 2nd series v.477 p.610 U.S. Court of Appeals, 3d Cir. (1973) (see U.S. v. Bournes, 6th Cir., below, for discussion) U.S. v. Graves, Federal Reporter 2nd series v.554 p. 65, U.S. Court of Appeals 3d Cir. (1977) (see U.S. v. Bournes, 6th Cir., below, for discussion) U.S. v. Rybar, Federal Reporter 3rd series v.103 p.273, U.S. Court of Appeals 3d Cir. (1996) (see U.S. v. Bournes, 6th Cir., below, for discussion)   FOURTH CIRCUIT The Fourth Circuit has jurisdiction over Maryland, North and South Carolina, Virginia and West Virginia. U.S. v. Johnson, Federal Reporter 2nd series v.497 p.548, U.S. Court of Appeals 4th Cir. (1974) (see U.S. v. Henson, 4th Cir., below) Love v. Pepersack, Federal Reporter 3rd series v.47 p.120, U.S. Court of Appeals 4th Cir. (1995) (see U.S. v. Henson, 4th Cir., below)   U.S. v. Henson, Federal Supplement 2nd series v.55 p.528, Southern District of West Virginia (June 14, 1999) Defendant Henson's motion to dismiss his federal indictment for possessing a firearm while subject to a restraining order for stalking his ex-wife was denied. Henson cited U.S. v. Emerson in making a Second Amendment claim that the federal law he was charged with violating, Title 18 U.S. Code Section 922(g)(8), is unconstitutional. The district court cited Fourth Circuit precedent and the U.S. Supreme Court's decision in U.S. v. Miller to hold that the Second Amendment is a "collective right of keeping and bearing arms which must bear a 'reasonable relationship to the preservation or efficiency of a well-regulated militia.'" [Interestingly, nowhere in the Miller case is the term 'collective right' used, and the meaning of 'right of the people' in Amendment II is not construed by the Supreme Court in Miller.] The Fourth Circuit precedents that the district court relied on are Love v. Pepersack and U.S. v. Johnson. Love v. Pepersack The Fourth Circuit in Love v. Pepersack cited the U.S. Supreme Court's U.S. v. Miller decision as holding that the Second Amendment "does not confer an absolute individual right to bear any type of firearm," perhaps acknowledging that the Second Amendment protects an individual right, but one subject to certain qualifications (not being a convicted felon, for one example). It also cited the U.S. Supreme Court's Presser v. Illinois decision (see below) as holding that the Second Amendment "does not apply to the states" and is thus not enforceable against the states via the Fourteenth Amendment. U.S. v. Johnson Finally, the Fourth Circuit in Love v. Pepersack cited its own precedent in U.S. v. Johnson, when it wrote that "[t]he courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a 'reasonable relationship to the preservation or efficiency of a well regulated militia,'" citing U.S. v. Miller, and an Eighth Circuit case, Cody v. U.S., Federal Reporter 2nd series v.460 p.34, U.S. Court of Appeals 8th Cir. (1972), neither of which say anything about a "collective right." The language used by the Fourth Circuit in Johnson makes it the first court ever to describe the Second Amendment as providing for a "collective right." Cody v. U.S. Indeed the precedents cited by the Eighth Circuit in Cody have "consistently held" no such thing. The Eighth Circuit cited United States v. Synnes, Federal Reporter 2nd series v.438 p.764, U.S. Court of Appeals 8th Cir. (1971); and Cases v. U.S., Federal Reporter 2nd series v.131 p.916, U.S. Court of Appeals, 1st Cir. (1942). Cases v. U.S. While the First Circuit in Cases exercises considerable effort to call into question an interpretation of the "Miller rule" which would say that the arms the Second Amendment protects most strongly are military arms (because of the types of weapons that such an interpretation would legalize), it does not use the term "collective right," nor does it construe the Second Amendment as being either an individual or "collective right." In fact, the court in Cases implies that "keeping and bearing arms" in the language of the Second Amendment can be performed by "by a single individual as well as by a group of individuals," but that such a right is not absolute and could be limited by Congress in both instances. U.S. v. Synnes U.S. v. Synnes also says nothing about a "collective right" but rests on Cases, U.S. v. Tot, Federal Reporter 2nd series v.131 p.261, U.S. Court of Appeals 3rd Cir. (1942), and United States v. Wiley, Federal Supplement v.309 p.141, U.S. District Court for Minnesota (1970). U.S. v. Wiley Wiley relies on Cases and Miller and recognizes "convicted aggressors as a separate class whose individual right to bear arms may be prohibited." U.S. v. Tot Thus, of the precedent underlying the district court's Second Amendment jurisprudence in U.S. v. Henson, only U.S. v. Tot asserts that the Second Amendment "was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power." In support of this, the Third Circuit in Tot cites two law review articles to claim that state constitutional guarantees are intended to protect the arms of the state militia from federal power: "Haight, 'The Right to Keep and Bear Arms,' Bill of Rights Review v.2 p.31 (1941); McKenna, 'The Right to Keep and Bear Arms,' Marquette Law Review v.12 p.138 (1928)." Interestingly, Tot does not introduce the term "collective right," either. The Haight article, when it refers to the English Declaration of Rights of 1689 which stated that "the subjects which are Protestants may have arms for their defence, suitable to their conditions, and as allowed by law" comes close, when it says that "The right to keep arms, as the declaration of rights indicated, meant that the people, as a collective body, [italics in the original] could rise up in resistance; it did not mean that they, as individuals, were entitled to bear arms in order to settle their private quarrels and feuds." While this may have been true for the English Declaration of Rights, the record shows that Congress voted down a proposal to add the words "for the common defence" to the text of the Second Amendment on September 9th, 1789. The Haight article also quotes a 1935 Florida case, U.S. v. Adams, Federal Supplement v.11 p.216, which argued that the Second Amendment "refers to the militia, a protective force of government; to the collective body and not individual rights." However, in notes for his speech to Congress introducing the proposed amendments that would become the Bill of Rights, James Madison wrote that "They relate 1st. to private rights--". As Stephen Halbrook has written, if there was any contemporary idea that they were drafting a "collective right" amongst the authors of the Second Amendment "it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis."   FIFTH CIRCUIT (see above)   SIXTH CIRCUIT The Sixth Circuit has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee. Stevens v. U.S., Federal Reporter 2nd series v.440 p.144, U.S. Court of Appeals 6th Cir. (1971) (see U.S. v. Vishnich, below) U.S. v. Warin, Federal Reporter 2nd series v.530 p.103, U.S. Court of Appeals 6th Cir. (1976) (see U.S. v. Vishnich, below) Peoples Rights Organization, Inc. v. City of Columbus, Federal Reporter 3rd series v.152 p.522, U.S. Court of Appeals 6th Cir. (1998) (see U.S. v. Napier, below)   U.S. v. Baker, Federal Reporter 3rd series v.197 p.211, U.S. Court of Appeals 6th Cir. (November 23, 1999) Defendant Baker, who at the time he was convicted of violating 18 U.S. Code Section 922(g)(8) had three restraining orders issued against him for the protection of his estranged wife and two subsequent girlfriends, challenged his conviction for possession of an SKS rifle in part on the basis of Fifth Amendment due process and notice. Acknowledging Emerson and Judge Posner's Wilson dissent (see U.S. v. Wilson, 7th Cir., below), the Sixth Circuit noted that "some courts have concluded that 922(g)(8) is an obscure law that penalizes the generally lawful practice of possessing firearms, and thus must allow for an ignorance of the law defense to avoid a conflict with the due process principle of fair warning." Unlike Emerson, however, the orders issued against Baker contained specific language "in bold print, that 'it is a federal violation to purchase, receive, or possess a firearm while subject to this order.' [...] Due process," observed the court, "requires nothing more." The Sixth Circuit, citing Warin (see below), also rejected the equal protection claim, ruling that since "Baker has no fundamental right to possess an assault rifle[,]" the law need only have a "rational relationship to a legitimate governmental interest" (termed a "rational basis" test) to be judged constitutional.   U.S. v. Vishnich, CASE NO. 4:99CR156, 65 Federal Supplement 2nd series 669 (U.S. District Court for N. Ohio, August 19, 1999) Defendant Vishnich appealed his conviction under 18 U.S. Code Section 922(g)(8) for being in possession of numerous firearms as the result of a residential burglary which he committed while he was subject to a domestic violence restraining order in an unrelated case. On appeal, Vishnich's defense argued that 922(g)(8) was unconstitutional on several grounds, including the Second Amendment. The district court would have none of this argument, stating "The Second Amendment[...] does not confer on Defendant, as an individual citizen, a right to bear arms in violation of a validly enacted federal law." Citing Sixth Circuit precedent in U.S. v. Warin and Stevens v. U.S., the court held that "[d]efendant cannot successfully invoke the Second Amendment as a shield against federal criminal liability," since the Second Amendment is a collective right of the states, and not an individual right. U.S. v. Warin In Warin, the U.S. Court of Appeals for the Sixth Circuit cited its precedent in Stevens v. U.S., as well as the Third Circuit's U.S. v. Tot decision, the Fourth Circuit case of U.S. v. Johnson, Cody v. U.S. from the Eighth Circuit (see Henson, 4th Cir., above, for discussions of Tot, Johnson, and Cody), and U.S. v. Miller from the U.S. Supreme Court. Stevens v. United States The Sixth Circuit in Stevens v. U.S. declared "[s]ince the Second Amendment right 'to keep and bear Arms' applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm," citing only the U.S. Supreme Court in U.S. v. Miller for support. As noted earlier, U.S. v. Miller makes no such holding, nor does it address the meaning of "the right of the people," whether individual or "collective." The Sixth Circuit in Stevens v. U.S. simply and boldly misrepresents the U.S. Supreme Court's narrow Miller decision.   U.S. v. Bournes, Federal Supplement 2nd series v.105 p.736, Eastern District of Michigan (July 18, 2000) Defendant Bournes, in appeal of his conviction under the National Firearms Act of 1934 on charges of possessing two unregistered machineguns cited his membership in a private militia group, "Michigan Militia Corps Wolverines" and the Second Amendment as a defense. Relying on Sixth Circuit precedent in U.S. v. Warin (see Vishnich, above), the district court rejected this line of reasoning, ruling that Bournes' membership in a private militia and his possession of a military weapon did not meet the requirements outlined by the U.S. Supreme Court in the so-called "Miller test," noting that existing precedent in other courts suggests that "It is no easy task to meet this burden; indeed, in the decades since Miller was decided, no federal court has found the requisite 'reasonable relationship' between a particular instance of weapon possession and a well-regulated militia." This is true in large part because the lower courts have tended to construe the Supreme Court's narrow ruling in Miller even more narrowly, to the point of making the Second Amendment a nullity. The district court at least made no objection to Bournes' standing to raise a Second Amendment claim, as it might well have done if the right protected by the Second Amendment were viewed exclusively as a "collective right." In addition to U.S. v. Warin and U.S. v. Miller, the district court cited the First Circuit's decision in Cases v. U.S. (see Henson, 4th Cir., above), as well as U.S. v. Rybar, Federal Reporter 3rd series v.103 p.273, U.S. Court of Appeals 3d Cir. (1996), U.S. v. Hale, Federal Reporter 2nd series v.978 p.1016, U.S. Court of Appeals 8th Cir. (1992), and Gillespie v. City of Indianapolis (see 7th Cir., below). U.S. v. Rybar The Third Circuit in U.S. v. Rybar wrote that even if a firearm were shown to meet the "Miller test" by reason of its military utility, the Supreme Court in Miller "did not state that such character alone would be sufficient to secure Second Amendment protection." Indeed, wrote the Third Circuit, relying on Cases v. U.S. (see Henson, 4th Cir. above for discussion), whether a given firearm has military application is "not determinative" of whether its possession or use is protected under the Second Amendment. The important factor, the Third Circuit wrote, is whether, as in Miller, possession or use of the firearm bears a reasonable relationship to 'the preservation or efficiency of a well regulated militia.' The Third Circuit in Rybar cites U.S. v. Hale (see section II below); U.S. v. Oakes, Federal Reporter 2nd series v.564 p.384, U.S. Court of Appeals 10th Cir. (1977); Warin (see Vishnich, 6th Cir., above); Third Circuit precedent in U.S. v. Graves, Federal Reporter 2nd series v.554 p. 65, U.S. Court of Appeals 3d Cir. (1977); Eckert v. City of Philadelphia, Federal Reporter 2nd series v.477 p.610 U.S. Court of Appeals, 3d Cir. (1973); U.S. v. Three Winchester 30-30 Caliber Lever Action Carbines, Federal Reporter 2nd series v.504 p.1288, U.S. Court of Appeals 7th Cir. (1974); the Fourth Circuit decision in Johnson; and Cases (see Henson, 4th Cir., above for discussion of Johnson and Cases). Eckert v. City of Philadelphia A terse and somewhat disjointed per curiam opinion, Eckert cites Miller for the proposition that "there must be some 'reasonable relationship to the preservation or efficiency of a well regulated militia'. There is nothing whatsoever of that kind in this appeal," and observes that "the right to keep and bear arms is not a right given by the United States Constitution." This latter statement can easily be interpreted to be a reference to language in U.S. v. Cruikshank (see below), in which the U.S. Supreme Court declared that the right protected by the Second Amendment "is that of 'bearing arms for a lawful purpose.'" which is "not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." Perhaps the reason the Third Circuit omitted the citation is because 'bearing arms for a lawful purpose' (which would include the natural right of self defense, as the Supreme Court implied) is a far more classically liberal interpretation of the Second Amendment than many modern so-called "liberal" jurists are comfortable with. U.S. v. Three Winchester 30-30 Caliber Lever Action Carbines The Court in dicta (commentary) cites Cody and Synnes (see U.S. v. Henson, 4th Cir., above for discussion of these two cases) in a voluntary footnote, since the defendant raised no Second Amendment claim in the appeal. U.S. v. Oakes Oakes is a frequently cited minor case, citing Miller for the proposition that the Second Amendment is not absolute, and that the possession of the firearm must have a state militia purpose. U.S. v. Graves Graves is also a minor case, which discusses the Second Amendment in dicta (commentary), since the defendant raised no Second Amendment challenge. Graves cites Miller, and Cody (see Henson, 4th Cir., above), as well as a table of previous convictions under GCA'68 in 'Prior Convictions and the Gun Control Act of 1968,' Columbia Law Review v.76 n.2 p.326 (1976). U.S. v. Hale Citing a 1989 law review article coauthored by Handgun Control, Inc.'s chief lawyer, Dennis Henigan, (Ehrman, Keith A. and Henigan, Dennis A., "The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, University of Dayton Law Review v.15 p.5), the Eighth Circuit in U.S. v. Hale made about as good a legal case for a narrow "vanishing" construction of the Second Amendment as could be made, arguing that the Second Amendment was intended to protect only the right of the people to keep and bear arms in relation to their legal duty to serve in state militias, which by the time of the U.S. Supreme Court's Miller decision were little more than "historical residue." The question of "[w]hether the 'right to bear arms' for militia purposes is 'individual' or 'collective' in nature is irrelevant," wrote the Eighth Circuit, since if one construes the right narrowly enough, such problems apparently collapse into a legal singularity, as if falling into a black hole. The Eighth Circuit in Hale relied on Eighth Circuit precedent in U.S. v. Nelsen, Federal Reporter 2nd series v.859 p.1318, U.S. Court of Appeals 8th Cir. (1988); Cody (see Henson, 4th Cir., above); and U.S. v. Decker, Federal Reporter 2nd series v.446 p.164, U.S. Court of Appeals 8th Cir. (1971); as well as Oakes (see Bournes, 6th Cir., above); Warin (see Vishnich, 6th Cir., above); and Cases (see Henson, above). U.S. v. Nelsen Nelsen cites Cruikshank for the proposition that "The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution.'", as well as Miller, Oakes (see Bournes, 6th Cir., above), and Warin (see Vishnich, 6th Cir., above). Just as the Third Circuit did in Eckert (see Section I, above), the 8th Circuit in Nelsen omits the context of this quote from Cruikshank, and tries to fashion a negation of the Second Amendment out of what is perhaps the clearest description of its scope by the Supreme Court. U.S. v. Decker Citing Miller and Synnes (see Henson, 4th Cir., above), the court in Decker held that recordkeeping required of gun dealers is not a Second Amendment violation, as there was no evidence it conflicts with the "Miller test" requiring a connection to the "maintainance of a well regulated militia"   U.S. v. Napier, No. 00-5290, 2000 FED App. 0397P, U.S. Court of Appeals, 6th Cir., (November 21, 2000) Defendant Napier raised a Second Amendment challenge to his conviction under Title 18 U.S. Code Section 922(g)(8) for possession of firearms while subject to a domestic violence restraining order and cited Emerson in his defense. The Sixth Circuit was not impressed, writing "Emerson stands alone in holding that the Second Amendment guarantees an individual right to bear arms." Actually this is not technically accurate, since the original Miller court, the U.S. District Court for the Western District of Arkansas (which would be under the Eighth Circuit), found that the National Firearms Act violated the Second Amendment in U.S. v. Miller, Federal Supplement v.26 p.1002 (Western District of Arkansas, 1939). One of the cases the Sixth Circuit relies on, U.S. v. Wright, acknowledges as much (see below!), though this point must have somehow escaped "judicial notice" in the current opinion. Citing Spruill (see 5th Cir., above), the Sixth Circuit continued, "Even a sister district court in Texas declined to follow Emerson, choosing instead to follow the majority path." The Sixth Circuit cited Warin (see Vishnich, 6th Cir., above), Miller, Sixth Circuit precedent in Peoples Rights Organization, Inc. v. City of Columbus; and U.S. v. Baker (see above); Love v. Pepersack (see Henson, 4th Cir., above), and Hickman v. Block, Federal Reporter 3rd series v.81 p.98, U.S. Court of Appeals, 9th Cir. (1996); U.S. v. Wright, Federal Reporter 3rd series v.117 p.1265, U.S. Court of Appeals 11th Cir. (1997) Peoples Rights Organization Inc. v. City of Columbus A case which voided for vagueness a Columbus, Ohio "assault weapons" ban, but which contained a dicta footnote citing Miller, Cruikshank, and Presser (see below), as well as Stevens and Warin (see Vishnich, 6th Cir., above), and Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, Federal Reporter 2nd series v.965 p.723, U.S. Court of Appeals 9th Cir. (1992) Fresno Rifle and Pistol Club, Inc. v. Van de Kamp The Ninth Circuit in Fresno Rifle ruled that because the Supreme Court's Cruikshank and Presser decisions which had held that the Second Amendment restricts only the powers of Congress, and not the states (since the Second Amendment is not "incorporated" against the states by application of the Fourteenth Amendment) have not been reversed by the Supreme Court, they are still "good law" (binding as precedent). As a result, the Court rejected plaintiff's claims that the California Roberti-Roos "assault weapons" ban was unconstitutional under the Second Amendment. Hickman v. Block Plaintiff Hickman, an FFL who wanted to branch out into a private security business, sued local authorities and city governments in the Los Angeles, CA area for denying his application for a concealed carry permit. The U.S. Court of Appeals for the Ninth Circuit rejected his Second Amendment appeal on the basis of his lack of standing, writing "We follow our sister circuits in holding that the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen. We conclude that Hickman can show no legal injury, and therefore lacks standing to bring this action." Indeed, observed the court, "no individual has ever succeeded in demonstrating such injury in federal court." The Ninth Circuit cited Miller as holding "that the right to keep and bear arms is meant solely to protect the right of the states to keep and maintain armed militia," a considerably more restrictive reading of Miller than what the decision actually held. Further, wrote the court, citing Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, "even if we determined that Hickman had standing to sue for violation of the Second Amendment, his suit would nevertheless fail because the Second Amendment is not incorporated into the Bill of Rights." U.S. v. Wright "[O]ur prior cases have suggested a narrow reading of this provision," wrote the Eleventh Circuit in Wright regarding its understanding of the Second Amendment, citing its own precedent in Farmer v. Higgins, Federal Reporter 2nd series v.907 p.1041 U.S. Court of Appeals 11th Cir. (1990) which was not a Second Amendment case, but instead involved the interpretation of language in the 1986 federal machinegun ban; as well as U.S. v. Williams and U.S. v. Johnson from the 5th Circuit (which were a pair of sawed-off shotgun cases which mirrored the circumstances in U.S. v. Miller). Relying on the same Handgun Control Inc. argument used with such effect by the Eighth Circuit in Hale to narrow the scope of the Second Amendment to a vanishing point (see Bournes, 6th Cir., above), the court wrote "The Second Amendment was inserted into the Bill of Rights to protect the role of the states in maintaining and arming the militia. It was designed to protect the state militias from federal legislation enacted to undermine the role of state militias." The Eleventh Circuit then rather awkwardly attempts to explain what this "narrow provision" emphasizing the role of state militias is doing in the midst of a Bill of Rights that protects "the right of the people peaceably to assemble" and "the right of the people to be secure in their persons, houses, papers and effects" against unreasonable search and seizure, while noting that "[n]ot a single federal court since Miller has held that an individual has demonstrated a sufficient relationship between weapons possession or use and a 'well regulated militia' so as to trigger Second Amendment protection." What this narrow view of the Second Amendment fails to see is that were the First and Fourth Amendments interpreted similarly, and similar legal burdens placed on individuals seeking to defend their rights in court, the only "people" who would have a right to peaceably assemble or to be secure against unreasonable search and seizures would be the members of the state legislature! The Eleventh Circuit reads Miller as a two part test, requiring that the weapon at issue be suitable for militia use, and that possession of it be reasonably related to a well regulated militia, citing Rybar, Hale, Oakes, and Warin (see Bournes and Vishnich, 6th Cir., above). "A careful reading of Miller," wrote the Court, "strongly suggests that only militias actively maintained and trained by the states can satisfy the 'well regulated militia' requirement of the Second Amendment." Since the defendant's claim fails to meet the "Miller test," the Court wrote, following Hale, "we need not decide here whether the Second Amendment creates an 'individual' or a 'collective' right." "[A]s a criminal defendant," the Court explained, citing the U.S. Supreme Court's precedent in Morgan v. Commonwealth of Virginia, United States Reports v.328 p.373 (1946), "Wright has 'standing' to assert a constitutional challenge to the statute he is charged with violating," no matter whether the Second Amendment protects a "collective right" or not. "Accordingly," the Court wrote, "not a single court has refused to consider a criminal defendant's Second Amendment challenge on 'standing' grounds," in contrast to Hickman v. Block, which dismissed a civil challenge to firearms regulation due to lack of standing. An interesting question is whether U.S. v. Miller, decided before Morgan, can even be used to argue a 'standing' issue with respect to the Second Amendment. The Supreme Court did not have to, and did not, rule on the issue of "standing" regarding a Second Amendment claim in the Miller case, since it had been appealed by the United States, not the defendant(s), unlike the case in Morgan. Morgan had been charged with violating a Virginia segregation law and raised a "commerce clause" challenge in the Supreme Court, which struck down the law.   Although in Napier they did not reach the issue of how the government could even potentially violate the Second Amendment, given their narrow reading, the Sixth Circuit cited U.S. v. Farrell, Federal Reporter 3rd series v.69 p.891, U.S. Court of Appeals 8th Cir. (1995), clearly implying that no private individual can ever meet the legal requirements set by the "Miller test." U.S. v. Farrell The 8th Circuit in Farrell had argued that by proving an exemption for "persons acting under the authority of the United States or of a state," the statute at issue "avoids any potential Second Amendment conflict." Thus, the only infringements of "the right of the people to keep and bear arms" that the Second Amendment could conceivably prevent would be if Congress were to pass a law disarming the FBI, the Secret Service, or any other armed federal or state officers. Under this interpretation, the explanatory "militia clause" at the head of the Second Amendment, like the mythical Ouroboros snake, is permitted to swallow the whole.   The Sixth Circuit in Napier also cited dicta by the U.S. Supreme Court in Lewis v. U.S. (see below) and U.S. v. Chavez, Federal Reporter 3rd series v.204 p.1305, U.S. Court of Appeals, 11th Cir. (February 29, 2000). In his Lewis footnote [which cited Miller, U.S. v. Three Winchester Carbines (see Bournes, 6th Cir., above), the Fourth Circuit's decision in Johnson, and Cody (see Henson, 4th Cir., above for discussion of Johnson and Cody)] Justice Blackmun volunteered that "[t]hese legislative restrictions on the use of firearms [by convicted felons] are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties." The Sixth Circuit in Napier ignores the context of the Lewis dicta, broadening the footnote almost into a holding that "clearly reiterated... that legislative restrictions on the use of firearms do not trench upon any constitutionally protected liberties." U.S. v. Chavez The 11th Circuit in Chavez cites the Lewis footnote and Wright (see above) in its own dicta. The court, following its earlier precedent in Wright, concerns itself with whether defendant Chavez can meet the "Miller test". Chavez had argued, among other claims, that loss of his Second Amendment right to keep and bear arms under Title 18 U.S. Code Section 922(g)(9) due to his conviction for misdemeanor domestic violence assault was an additional harsh penalty, which together with the other conditions of his sentence, made his case serious enough to entitle him to a jury trial, rather than the bench trial before a judge that he received for this "petty offense." The 11th Circuit notes that the Supreme Court in Lewis "approvingly" cited the 4th Circuit case of U.S. v. Johnson (see Henson, 4th Cir., above), describing Johnson as a "case holding that 922(g) does not violate Second Amendment[.]" The context of the Lewis footnote, it must be remembered, involved whether convicted felons (not misdemeanants like Chavez) can be deprived of their Second Amendment rights. However, the 11th Circuit avoids this critical distinction, and again declines to "reach the constitutional issue because," it argued, "[...]even if Chavez did have some right to bear arms he could have been deprived of it without a jury under these circumstances." One implication of this line of reasoning is that Congress can blur the traditional distinction between felonies and misdemeanors all it wants (permanently revoking voting rights, for instance) so long as the actual jail sentence for such crimes doesn't exceed six months. Other case law cited by the Sixth Circuit in Napier included: Gillespie v. City of Indianapolis (see 7th Cir., below); Fraternal Order of Police v. United States (see D.C. Cir., above); U.S. v. Waller and U.S. v. Smith (see 8th Cir., below for discussion of Smith and Waller); U.S. v. Mack (see 9th Cir., below); U.S. v. Three Winchester Carbines (see Bournes, 6th Cir., above); the 4th Circuit's decision in United States v. Johnson, and Cody (see Henson, 4th Cir, above for discussion of Johnson and Cody).   SEVENTH CIRCUIT The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin. Current U.S. Supreme Court Justice John Paul Stevens served on the U.S. Court of Appeals for the Seventh Circuit from 1970-1975, before being nominated to the Supreme Court by President Gerald Ford. U.S. v. McCutcheon, Federal Reporter 2nd series v.446 p.133, U.S. Court of Appeals 7th Cir. (1971) (see Gillespie v. City of Indianapolis, below) U.S. v. Three Winchester 30-30 Caliber Lever Action Carbines, Federal Reporter 2nd series v.504 p.1288, U.S. Court of Appeals 7th Cir. (1974) (see Bournes, 6th Cir, above) Quilici v. Village of Morton Grove, Federal Reporter 2nd series v.695 p.261, U.S. Court of Appeals 7th Cir. (1982) (see Gillespie v. City of Indianapolis, below) Sklar v. Byrne, Federal Reporter 2nd series v.727 p.633, U.S. Court of Appeals 7th Cir. (1984) (see Gillespie v. City of Indianapolis, below) U.S. v. Jester, Federal Reporter 3rd series v.139 p.1168, U.S. Court of Appeals 7th Cir. (1998) (see Gillespie v. City of Indianapolis, below)   U.S. v. Wilson, Federal Reporter 3rd series v.159 p.280, U.S. Court of Appeals 7th Cir. (1998) When Illinois state troopers in Union County stopped to assist defendant Wilson, who said he had gotten lost in southern Illinois after coming to the state from Indiana to buy a car, little could they have known that they would end up "assisting" Wilson out of his pickup truck and into the "big house" for a three year sentence. Thanks in part to their efforts, Wilson became the second person ever to be prosecuted for violating 18 U.S. Code Section 922(g)(8), as a result of his possession of firearms while being under a protective order resulting from his divorce a year earlier. Upon running a routine check, the troopers learned that Wilson had an outstanding warrant for failure to appear in court, and arrested him. A search of his person and the truck turned up a 9mm Lorcin pistol in a fanny pack Wilson was wearing, a rifle, and a 12-gauge shotgun in a case. Upon conviction, the judge handed down a minimum sentence: 41 months in federal prison, a $7,500 fine, and a $100 "special assessment," followed by three years probation. He had faced up to ten years imprisonment and a $250,000 fine. The judge told Wilson he would reduce the fine if Wilson paid his ex-wife the several thousand dollars in back child support she was owed. Wilson appealed his conviction in part on constitutional grounds, arguing that the law he was charged with violating was an unconstitutional extension of the "commerce clause," intruded on powers reserved to the states under the Tenth Amendment, and violated his Fifth Amendment due process rights. The Seventh Circuit upheld his conviction under what even the majority acknowledged was "a relatively new and obscure" federal law, but in an influential dissenting opinion, Chief Judge Richard Posner wrote that "[i]t is wrong to convict a person of a crime if he had no reason to believe that the act for which he was convicted was a crime, or even that it was wrongful." Posner's dissent would later be extensively cited by Judge Cummings in the less-publicized Fifth Amendment half of his groundbreaking decision in U.S. v. Emerson. "Congress created, and the Department of Justice sprang," wrote Chief Judge Posner, "a trap on Carlton Wilson as a result of which he will serve more than three years in federal prison for an act (actually an omission to act) that he could not have suspected was a crime or even a civil wrong." "I estimate that every year the law has been in effect almost one hundred thousand restraining orders against domestic violence have been issued," Posner wrote. Since some 40 percent of U.S. households own guns according to the Justice Department's Sourcebook of Criminal Justice Statistics, wrote Posner, "there can be very little doubt that a large percentage of those orders were issued against gun owners. How many of these gun owners, when they got notice of the restraining order, dispossessed themselves of their guns? I doubt that any did. The law is malum prohibitum, not malum in se; that is, it is not the kind of law that a lay person would intuit existed because the conduct it forbade was contrary to the moral code of his society." Citing a couple of "ridiculously obscure" federal crimes as examples, "such as the one against using the coat of arms of Switzerland in advertising" (Title 18 U.S. Code Section 708) or the federal crime of "using 'Johnny Horizon' as a trade name without the authorization of the Department of the Interior" (Title 18 U.S. Code Section 714), Posner wrote that "[t]he prohibition in section 922(g)(8) is one of the most obscure. A person owns a hunting rifle. He knows or should know that if he is convicted of a felony he will have to get rid of the gun; if he doesn't know, the judge or the probation service will tell him. But should he be made subject to a restraining order telling him to keep away from his ex-wife, whom he has not ever threatened with his hunting rifle (the judge who issued the restraining order could but did not issue an order forbidding Wilson to possess a firearm as long as the order was in force), it will not occur to him that he must give up the gun unless the judge issuing the order tells him" (citation omitted). As in Emerson, Posner wrote "[t]he judge didn't tell Wilson; so far as appears, the judge was unaware of the law. Wilson's lawyer didn't tell him either -- Wilson didn't have a lawyer," having represented himself. "No one told him. And there is no reason that he should have guessed," wrote Posner, "for while he had beaten his wife and threatened to kill her, there is no indication that guns played any part in the beating or the threats. The fact that the restraining order contained no reference to guns may have lulled him into thinking that, as long as he complied with the order and stayed away from his wife, he could carry on as before." "All the Department of Justice had to do in order to preserve the rule of law was to notify all state courts that have a domestic-relations jurisdiction" of the existence and terms of the law, wrote Posner, "and to suggest that every domestic-relations restraining order contain a printed warning that the defendant is violating federal criminal law unless he immediately divests himself of any firearms and ammunition that he owns. Domestic-relations judges would be happy to include such a warning because it would give added teeth to their orders." Though the Justice Department later issued bulletins about the law to U.S. Attorneys, wrote Posner, this step "came too late to help Wilson avoid becoming a federal felon." [Some details of this case summary are drawn from reports in the St. Louis Post Dispatch, 9/17/1997, p.B2, and 1/29/1998, p.B1.]   U.S. v. Lewitzke, Federal Reporter 3rd series v.176 p.1022, U.S. Court of Appeals 7th Cir. (May 12, 1999) Defendant Kirk Lewitzke was what some might call a "gun nut," with a large earthen berm and shooting range in his backyard in rural Wisconsin. Divorced for almost nine years, the sins of his past came back for revenge when his ex-wife turned him in to the Bureau of Alcohol Tobacco and Firearms after reading about a new federal law prohibiting persons with domestic violence misdemeanors from owning guns. Lewitzke had pleaded guilty ten years earlier to two separate misdemeanor counts of hitting his wife, and while she admitted to reporters from the Milwaukee Journal-Sentinel (5/10/1998, p.1) that Lewitzke stopped being violent after the divorce, she said she was concerned for the safety of her children when they visited their father, since "I couldn't get him to get the guns out of his house." Lewitzke told reporters that when he became aware of the law, he gave away the dozen firearms he owned to his father, a retired Wausau police officer. The six guns that the BATF found when they raided his home belonged to friends who used the backyard range, said Lewitzke. The federal district court that convicted him did not find the defense argument credible, and sentenced Lewitzke to fifteen months in federal prison. Lewitzke then became the first person ever to be convicted by a jury for violating Title 18 U.S. Code Section 922(g)(9). On appeal to the U.S. Court of Appeals for the Seventh Circuit, Lewitzke argued that the law violated constitutional "equal protection" requirements under the Fifth Amendment, since persons convicted of domestic violence misdemeanors were singled out for prosecution when those convicted of other violent misdemeanors may be just as likely to misuse their guns. While it conceded that other violent misdemeanants may be dangerous, the court wrote that according to precedent, "Congress is free to 'take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind'" and that "by definition, those convicted of domestic violence offenses have already harmed their domestic partners in some fashion. It certainly would not be irrational for Congress to conclude that these individuals pose the most acute danger of turning a gun on a family member." The law thus has a "rational basis" and survives Lewitzke's "equal protection" challenge.   Gillespie v. City of Indianapolis, Federal Reporter 3rd series v.185 p.693, U.S. Court of Appeals, 7th Cir. (July 9, 1999) A police officer for more than twenty-five years in Indianapolis, Indiana, plaintiff Gillespie was fired because he could no longer legally carry (or indeed even own) a gun as a result of 18 U.S. Code Section 922(g)(9), the federal law prohibiting persons with misdemeanor convictions for domestic violence from possessing firearms. Gillespie had pleaded guilty in October 1995 to a misdemeanor charge of battery of his ex-wife, almost a year before the federal law which would ultimately cost him his badge went into effect on September 30, 1996. Gillespie sued the city government that had fired him, and raised several constitutional objections to the new federal law, which the U.S. Court of Appeals for the Seventh Circuit considered upon appeal of his losing his suit in district court. Among the objections raised was a challenge to the law's constitutionality on Second Amendment grounds. The Seventh Circuit ruled against Gillespie on the merits of that claim, noting that "we have twice rejected the contention that the right to possess a firearm is a fundamental one." The court cited U.S. v. Jester, Federal Reporter 3rd series v.139 p.1168, U.S. Court of Appeals 7th Cir. (1998); Sklar v. Byrne, Federal Reporter 2nd series v.727 p.633, U.S. Court of Appeals 7th Cir. (1984), and the Supreme Court's Lewis footnote (in yet another inapposite citation of Justice Harry Blackmun's popular pro-"gun control" dicta, which originally occurs in the context of a felon-in-possession case. See also Adams v. Williams, below.). U.S. v. Jester Jester references Sklar v. Byrne, an earlier Seventh Circuit precedent that had held "the right to possess a firearm is not a fundamental one."   Sklar v. Byrne In Sklar, the Seventh Circuit had held that Chicago's handgun ban "does not impinge upon any federal constitutional right to bear arms." This is because, wrote the court, "[t]his court held recently that the second amendment regulates only the activities of the federal government -- not those of the states or their subdivisions" in a equal protection case, citing Quilici v. Village of Morton Grove, Federal Reporter 2nd series v.695 p.261, U.S. Court of Appeals 7th Cir. (1982). Quilici v. Morton Grove The Seventh Circuit in Quilici held, citing the U.S. Supreme Court's 1886 Presser v. Illinois decision (see below), that the handgun ban imposed by the Chicago suburb of Morton Grove was constitutional because the Second Amendment applies only as a limitation on the federal government, and has not been incorporated to apply to states and localities.   The Seventh Circuit concludes its treatment of Gillespie's Second Amendment challenge with a brief and misleading paraphrase of the Supreme Court's judgement in U.S. v. Miller (see also below). The Seventh Circuit writes that "[i]n the absence of 'some reasonable relationship' between the gun and 'the preservation or efficiency of a well regulated militia,' the [Supreme] Court concluded, 'we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.'" Rather than finding that no such "reasonable relationship" existed, what the Supreme Court actually wrote was that "in the absence of evidence" of such a relationship the high court "cannot say" whether such a weapon falls within the scope of Second Amendment protection, a subtle, but important legal distinction. In support of its conclusion that "the Second Amendment establishes no right to possess a firearm apart from the role possession of the gun might play in maintaining a state militia[,]" the Seventh Circuit again cites the Lewis footnote, along with a U.S. Supreme Court footnote in Konigsberg v. State Bar of California, United States Reports v.366 p.36 (1961); a U.S. Supreme Court dissent in Adams v. Williams, United States Reports v.407 p.143 (1972); its own precedents in Quilici, U.S. v. Three Winchester Carbines (which had been cited approvingly in the Lewis footnote, see Bournes, 6th Cir., above, for discussion); and U.S. v. McCutcheon, Federal Reporter 2nd series v.446 p.133, U.S. Court of Appeals 7th Cir. (1971), as well as Wright and Hale (see respectively Napier and Bournes, 6th Cir., above, for discussion of Wright and Hale). Konigsberg v. State Bar of California This case contains a footnote which references Miller, essentially noting that despite the "unqualified command" of the Second Amendment, the right protected by the Second Amendment is not absolute. This, from an era before the social tumult of the 1960s brought with it agitation for more federal "gun control" laws, is a more reasonable and much less controversial interpretation of the Second Amendment than that espoused little more than a decade later in a dissent to Adams v. Williams. Adams v. Williams In his dissent, last surviving New Deal-era Justice William O. Douglas rants, citing Miller, that "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. [...] Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment." Understandably, supporters of "gun control" usually prefer to cite the Lewis footnote rather than this fire-breathing dissent in their briefs, lest they be seen as favoring something other than just "reasonable gun safety measures." U.S. v. McCutcheon McCutcheon is a sawed-off shotgun case relying on Miller, holding that the 1968 Gun Control Act does not violate the Second Amendment. The Seventh Circuit disagreed, however, that Gillespie lacked standing to make a Second Amendment claim, as the Clinton Justice Department had argued in its brief defending the federal law. Though acknowledging cases like San Diego County Gun Rights Committee v. Reno, Federal Reporter 3rd series v.98 p.1121, U.S. Court of Appeals 9th Cir. (1996), and Hickman v. Block (see Napier, 6th Cir., above), court observed that "the great majority of precedents in this area have rejected Second Amendment challenges to firearms legislation on their merits and thus have implicitly rejected the notion that individuals lack standing to invoke the Second Amendment." Considering the fact that Gillespie "has suffered a cognizable injury as a result of the statute's enactment, and that injury is one that would be redressed through a favorable ruling on his Second Amendment challenge," the court wrote, he should be allowed to make his case. In support of its ruling, the Seventh Circuit cited Miller; Rybar (see Bournes, 6th Cir., above); Pepersack (see Henson, 4th Cir., above); Quilici (see I.1.a., above); Oakes (see Bournes, 6th Cir., above); Warin (see Vishnich, 6th Cir., above); Wright (see Napier, 6th Cir., above); and Thomas v. Members of City Council of Portland, Federal Reporter 2nd series v.730 p.41, U.S. Court of Appeals 1st Cir. (1984). San Diego County Gun Rights Committee v. Reno Citing Hickman v. Block (see Napier, 6th Cir., above), the Ninth Circuit dismissed a Second Amendment challenge to the 1994 Clinton gun ban (see Public Safety And Recreational Firearms Use Protection Act, below) for lack of standing, but noted that "[r]ecent dicta suggests that the Second Amendment might embody an individual right. See U.S. v. Gomez, Federal Reporter 3rd series v.92 p.770, U.S. Court of Appeals 9th Cir. (1996) ('the Second Amendment embodies the right to defend oneself and one's home against physical attack.'). That aberrant footnote, however, has no precedential value because it reflects the views of only one judge on the panel, and the two concurrences specifically declined to join in the footnote." Without further guidance from the U.S. Supreme Court, of course, it remains to be seen whether this really is an "aberrant footnote," or a rare moment of honesty about the meaning of the Second Amendment in contemporary jurisprudence. Thomas v. Members of City Council of Portland Plaintiff Thomas challenged the decision of Portland, Maine to deny him a concealed carry permit. The U.S. Court of Appeals for the First Circuit held that "Established case law makes clear that the federal Constitution grants appellant no right to carry a concealed handgun." The court cites Miller; Oakes(see Bournes, 6th Cir., above); and the Fourth Circuit's Johnson decision (see Henson, 4th Cir., above) for the proposition that the Second Amendment applies only to weapons having a "reasonable relationship to a well regulated militia." Presser (see below); Quilici (see I.1.a., above); and Cases (see Henson, 4th Cir., above) are cited to support that the Second Amendment doesn't apply to states and localities, and Warin and Stevens (see Vishnich, 6th Cir., above, for discussion of Warin and Stevens) as precedent that the Second Amendment "grants right to the state, not the individual." Stevens, which is cited in Warin, has language broadly similar to this, referring to the "right of the State to maintain a militia" contrasted with "the individual's right to bear arms[.]" The court also cites the Supreme Court footnote in Lewis, for no apparent reason, since Lewis is dicta dealing with firearms possession by felons, and this was a civil case dealing with a concealed carry permit.   EIGHTH CIRCUIT The Eighth Circuit has jurisdiction over Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota. U.S. v. Miller, Federal Supplement v.26 p.1002 (Western District of Arkansas, 1939) U.S. v. Wiley, Federal Supplement v.309 p.141 (U.S. District Court for Minnesota, 1970) (see Henson, 4th Cir., above) U.S. v. Synnes, Federal Reporter 2nd series v.438 p.764, U.S. Court of Appeals 8th Cir. (1971) (see Henson, 4th Cir., above) U.S. v. Decker, Federal Reporter 2nd series v.446 p.164, U.S. Court of Appeals 8th Cir. (1971) (see Bournes, 6th Cir., above) Cody v. U.S., Federal Reporter 2nd series v.460 p.34, U.S. Court of Appeals 8th Cir. (1972) (see Henson, 4th Cir., above) U.S. v. Nelsen, Federal Reporter 2nd series v.859 p.1318, U.S. Court of Appeals 8th Cir. (1988) (see Bournes, 6th Cir., above) U.S. v. Hale, Federal Reporter 2nd series v.978 p.1016, U.S. Court of Appeals 8th Cir. (1992) (see Bournes, 6th Cir., above) U.S. v. Farrell, Federal Reporter 3rd series v.69 p.891, U.S. Court of Appeals 8th Cir. (1995) (see Napier, 6th Cir., above) U.S. v. Barry, Federal Reporter 3rd series v.98 p.373, U.S. Court of Appeals 8th Cir. (1996) U.S. v. Folen, Federal Reporter 3rd series v.84 p.1103, U.S. Court of Appeals 8th Cir. (1996) U.S. v. Smith, Federal Reporter 3rd series v.171 p.617, U.S. Court of Appeals 8th Cir. (March 24, 1999) U.S. v. Ficke, Federal Supplement 2nd series v.58 p.1071, U.S. District Court for Nebraska (July 16, 1999) U.S. v. Waller, Federal Reporter 3rd series, v.218 p.856, U.S. Court of Appeals 8th Cir. (July 12, 2000)   U.S. v. Smith, Federal Reporter 3rd series v.171 p.617, U.S. Court of Appeals 8th Cir. (March 24, 1999) The Eighth Circuit in Smith rejected the defendant's Fifth Amendment equal protection argument against Title 18 U.S. Code Section 922(g)(9). Having been convicted of only a misdemeanor, Smith argued, he cannot have his civil rights restored (notably his right to keep and bear arms), as he might have done had he been convicted of a felony, and therefore 922(g)(9) violates his Fifth Amendment right to equal protection of law. The Eighth Circuit disagreed that the Second Amendment was applicable, ruling that there is "no Constitutional violation unless possession of a weapon has a reasonable relationship to the militia," citing the Supreme Court footnote in Lewis (see below) and U.S. v. Hale (see Bournes, 6th Cir., above), which interpreted the Second Amendment so narrowly as to only make it applicable to arms borne in state militia service. As there is no fundamental right at issue, the court argued, the law need only be "rationally related to a legitimate governmental interest" in order to be constitutional. Congress, wrote the court, "was concerned with domestic abuse offenders who were successful in pleading a felony charge down to a misdemeanor and thus escaping the effect of the felon-in-possession statutes" and so the disparate treatment of felons and misdemeanants under 922(g)(9) has a "rational basis," and survives Smith's "equal protection" challenge. Further, argued the court, Smith could still apply to the Governor for a pardon, even if that was not his "preferred method of avoiding the consequences of his prior misdemeanor conviction." Smith had pleaded guilty to a misdemeanor domestic violence assault charge in 1994, after his court-appointed public defender failed to appear. He was subsequently arrested on federal firearms charges when he shot and wounded the same woman, the mother of his child, in 1996.   U.S. v. Ficke, Federal Supplement 2nd series v.58 p.1071, (U.S. District Court for Nebraska, July 16, 1999) The U.S. District Court for Nebraska dismissed the federal indictment of defendant Ficke under Title 18 U.S. Code Section 922(g)(9) on one count of possessing firearms following a state misdemeanor conviction for domestic assault. Ficke had moved to dismiss the indictment on grounds that the law violated the notice and fair warning requirements of the Fifth Amendment's "due process" clause, citing the Fifth Amendment jurisprudence of Judge Cummings in U.S. v. Emerson. The district court agreed, writing that "I am persuaded that the notice analysis in Emerson and in Judge Posner's Wilson dissent is the correct reasoning to resolve this case. The defendant here would have no way of knowing that mere possession of hunting firearms had become felonious conduct two years after his misdemeanor conviction unless he spent considerable time in law libraries keeping track of amendments to federal firearms statutes, a highly unlikely scenario considering the defendant's educational background, or he otherwise received notice of the section's enactment and its application to his situation." Ficke, the court noted, "simply did not know and did not receive fair warning that his conduct had become unlawful," since he "entered his pro se plea of no contest to state charges of misdemeanor domestic assault in 1994 -- two years before it became a federal felony for a person with a misdemeanor domestic assault conviction to possess firearms. The county court judge who sentenced the defendant to six months probation in 1994 obviously, therefore, could not have informed him when accepting his pro se no contest plea that one consequence of his misdemeanor conviction would be a nearly automatic federal felony conviction were he ever found in possession of firearms, even hunting weapons. The defendant continued to possess and to use the hunting weapons involved in this prosecution --perfectly legal behavior under both state and federal law-- until an act of Congress in 1996, suddenly and without notice to him, made possession of those weapons a felony offense. Since the defendant had appeared pro se on the underlying misdemeanor charge, he obviously had no lawyer who could have called him up two years later with the warning that he should divest himself of his guns." The district court, by ruling in favor of the defendant, became the first U.S. District Court to hold that Title 18 U.S. Code Section 922(g)(9) as it was applied is unconstitutional under Fifth Amendment "due process" requirements. Whether the ruling will stand up on appeal in light of the Eighth Circuit's decision in U.S. v. Hutzell (below) is open to question, though.   U.S. v. Waller, Federal Reporter 3rd series, v.218 p.856, U.S. Court of Appeals 8th Cir. (July 12, 2000) In a very brief ruling, the Eighth Circuit disposed of defendant Waller's frivolous Second Amendment challenge (and his other challenges as well) to his seventy-four count felon-in-possession conviction under 18 U.S. Code Section 922(g)(1). "Unfortunately for Waller," wrote the court, "it is now well-settled that Congress did not violate the Second Amendment in enacting the statutes in question," citing Lewis (see below), U.S. v. Barry, Federal Reporter 3rd series v.98 p.373, U.S. Court of Appeals 8th Cir. (1996); U.S. v. Folen, Federal Reporter 3rd series v.84 p.1103, U.S. Court of Appeals 8th Cir. (1996) [Barry and Folen, both citing Lopez (see below), are two "commerce clause" firearms cases which do not even raise the Second Amendment!]; and Cody (see Henson, 4th Cir., above).   U.S. v. Hutzell, Federal Reporter 3rd series v.217 p.966, U.S. Court of Appeals 8th Cir. (July 5, 2000) Defendant Hutzell brought an appeal of the district court's refusal to dismiss his indictment under Title 18 U.S. Code Section 922(g)(9) for possession of a firearm following a misdemeanor conviction for domestic violence. Hutzell argued that the law violated the notice and fair warning requirement of the Fifth Amendment's "due process" clause. The Eighth Circuit Court of Appeals disagreed in this case, writing that "[t]he district court observed (correctly, we believe) that an individual's domestic violence conviction should itself put that person on notice that subsequent possession of a gun might well be subject to regulation." Noting that "[a]lthough an individual's right to bear arms is constitutionally protected," the Court wrote, citing Miller, "the possession of a gun, especially by anyone who has been convicted of a violent crime, is nevertheless a highly regulated activity, and everyone knows it." In a very extensive dissent (almost seven times the length of the majority opinion!), Chief District Judge Mark W. Bennett wrote that the criminal provision of Title 18 U.S. Code Section 924(a)(2) establishes penalties only for a person who "knowingly violates" Title 18 U.S. Code Section 922(g)(9). The plain language of the criminal provision, wrote Bennett, "requires proof that the defendant knew that the conduct proscribed [in Section 992(g)(9)] is illegal before the defendant can be convicted of violating [it.]. That is not, however, the interpretation given to these statutes by the district court. Rather, the district court concluded that proof of Mr. Hutzell's knowledge or awareness of the facts supporting his indictment was sufficient to establish a 'knowing violation' of [Section 922(g)(9)], and I must perforce agree that the district court's interpretation is in accord with precedent of this circuit." The district court's decision is likewise "in accord with every majority opinion of a Circuit Court of Appeals to address the application of that language," wrote Bennett. "Every such decision has concluded that a conviction does not require proof that the defendant knew or should have known of the requirements of the law." However, Bennett's dissent quotes extensively from Judge Posner's dissent in Wilson (see 7th Cir., above), which formed the argument that also led Judge Cummings to his Fifth Amendment conclusions in Emerson. Bennett's dissent went on to analyze in detail a Supreme Court case that Judge Posner had cited, Lambert v. California, 355 U.S. 225 (1957), which carved out a limited exception to the general rule that "ignorance of the law is no excuse." Bennett applied the "Lambert test" to the law at issue, and found that "[t]he law in question here is so obscure that not only are most of the people to whom it might be applicable unaware of its existence, most state-court judges, those most involved in administration of domestic abuse statutes, appear to be unaware of it, and routinely fail to advise persons convicted of domestic abuse or subject to domestic abuse restraining orders of their potential liability for firearm possession under federal law." It is because of this failure of the government to conform to the notice and fair warning requirements of the Fifth Amendment's "due process" clause regarding this law that Hutzell's indictment and subsequent conviction should be overturned, Bennett concluded, not simply because of any ignorance of the law on Hutzell's part.   NINTH CIRCUIT The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. Current U.S. Supreme Court Justice Anthony Kennedy served on the U.S. Court of Appeals for the Ninth Circuit from 1975 to 1988 before being nominated to the U.S. Supreme Court in 1988 by President Ronald Reagan. Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, Federal Reporter 2nd series v.965 p.723, U.S. Court of Appeals 9th Cir. (1992) (see Napier, 6th Cir., above) Hickman v. Block, Federal Reporter 3rd series v.81 p.98, U.S. Court of Appeals, 9th Cir. (1996) (see Napier, 6th Cir., above) U.S. v. Gomez, Federal Reporter 3rd series v.92 p.770, U.S. Court of Appeals 9th Cir. (1996) (see Gillespie, 7th Cir., above) San Diego County Gun Rights Committee v. Reno, Federal Reporter 3rd series v.98 p.1121, U.S. Court of Appeals 9th Cir. (1996) (see Gillespie, 7th Cir., above) U.S. v. Mack, Federal Reporter 3rd series v.164 p.467, U.S. Court of Appeals 9th Cir. (January 12, 1999) U.S. v. Hancock, Federal Reporter 3rd series v.231 p.557, U.S. Court of Appeals 9th Cir. (October 26, 2000)   U.S. v. Mack, Federal Reporter 3rd series v.164 p.467, U.S. Court of Appeals 9th Cir. (January 12, 1999) The Ninth Circuit, citing its earlier precedent in Hickman v. Block (see Napier, 6th Cir., above for discussion), dismissed defendant Mack's appeal for lack of standing. "[P]rivate citizens do not have standing to bring a Second Amendment challenge," the court ruled.   U.S. v. Hancock, Federal Reporter 3rd series v.231 p.557, U.S. Court of Appeals 9th Cir. (October 26, 2000) Defendant Hancock challenged his conviction under Title 18 U.S. Code Section 922(g)(9) for possession of a firearm following a misdemeanor conviction for domestic violence. As part of his appeal, Hancock argued that the law he was charged with violating was unconstitutional on the basis of the "equal protection" clause of the Fifth Amendment, in part because it burdens his Second Amendment right to keep and bear arms, since it "might treat some misdemeanants more harshly than the federal felon-in-possession statute treats some felons." Felons can apply to have their civil rights restored, including the right to bear arms, while misdemeanants, since they are not stripped of their civil rights upon conviction, cannot. Citing prior Ninth Circuit precedent in Hickman v. Block (see Napier, 6th Cir., above), the Court wrote that "[n]otwithstanding Defendant's argument, Hickman is the law of this circuit and disposes of Defendant's argument that the Second Amendment confers on individual citizens a fundamental right to bear arms." In the absence of a fundamental right at issue, the court needs only to find a "rational basis" for the law for it to be constitutional under "equal protection" jurisprudence. Hancock's challenge on the basis of the notice and fair warning requirement of the Fifth Amendment "due process" clause was similarly rejected by the Court.   TENTH CIRCUIT The Tenth Circuit has jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. U.S. v. Oakes, Federal Reporter 2nd series v.564 p.384, U.S. Court of Appeals 10th Cir. (1977) (see Bournes, 6th Cir., above) U.S. v. Rose, Federal Reporter 2nd series v.695 p.1356, U.S. Court of Appeals 10th Cir. (1982) (see U.S. v. Boyd, below) U.S. v. Brumfield, Federal Reporter 3rd series v.34 p.1076, U.S. Court of Appeals 10th Cir. (1994) (see U.S. v. Boyd, below) U.S. v Boyd, Federal Supplement 2nd series v.52 p.1233 (U.S. District Court for Kansas, March 30, 1999) U.S. v. Willbern, No. 99-10161-01-JTM, 2000 U.S. Dist. LEXIS 6462 (U.S. District Court for Kansas, April 12, 2000)   U.S. v Boyd, Federal Supplement 2nd series v.52 p.1233 (U.S. District Court for Kansas, March 30, 1999)