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Anti-gun Lobby Attempt to Influence U.S. Brief in Supreme Court on Emerson Second Amendment Case by Stephen P. Halbrook

          On May 6, 2002, U.S. Solicitor General Theodore Olson filed a brief in the Supreme Court recognizing that the Second Amendment right to keep and bear arms is a personal right of law-abiding citizens.  The filing arose out of the decision in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), in which the U.S. Court of Appeals for the 5th Circuit held that the Second Amendment protects the right to possess a firearm, but upheld a law barring possession by a person subject to a domestic violence restraining order.

           When the case was before the 5th Circuit, the Reno Justice Department argued the Clinton Administration position that the only “right” protected by the Second Amendment was that of the States to maintain militias, not of any individual to possess a firearm.  After the 5th Circuit rejected that view in favor of the individual-rights interpretation but upheld the statute, Dr. Timothy Emerson filed a petition asking the Supreme Court to review that decision and to declare the law void.

           Given that Attorney General John Ashcroft on previous occasions expressed agreement with the individual-rights view, it was an open question as to how the United States would respond to Emerson’s petition.  Moreover, another petition was pending before the Court asserting the invalidity of a law based on the Second Amendment. [1]   The due date for the government’s response approached.

           The Violence Policy Center (VPC), which lobbies for prohibitions on possession of firearms, anticipated that the brief of the United States in Emerson would agree with the 5th Circuit that the Second Amendment guarantees individual rights.  In an effort to prevent such a brief from being filed, VPC retained Andrew Frey, who was Deputy Solicitor General during 1973-86, to write a letter to Solicitor General Olson urging that the United States stick with its Clinton-era position that the Second Amendment does not protect any individual rights.

           Frey wrote a lengthy missive on behalf of VPC to Olson dated May 2, 2002, just four days before the brief was due.  The letter was quickly posted on the VPC website, which features a regular “Ashcroft Watch” column which is critical of the Attorney General.  The following analyzes Mr. Frey’s letter.

           Frey asserts that any concession that “the right of the people to keep and bear arms” means what it says would “appear to be a politically motivated action and would impair the credibility of your Office before the Court and in the eyes of the public.”  It goes without saying that the Clinton Administration’s anti-Second Amendment policies were nothing but political and that an honest appraisal of this portion of the Bill of Rights would restore, not reduce, credibility.  Frey described the VPC as “a national non-profit educational organization” concerned with “firearms violence,” but in reality it is a tiny extremist group which lobbies to criminalize firearm possession by law-abiding Americans and is completely unconcerned with violent criminals.

           Frey’s 15-page letter proceeds to make one misstatement after another to denigrate the Second Amendment.  Not once does he so much as quote its words: “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.”  Frey attacks the decision by the U.S. Court of Appeals for the Fifth Circuit in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), but does not, and indeed cannot, refute that court’s textual analysis:

[T]he words “the people” have precisely the same meaning within the Second Amendment as without. And, as used throughout the Constitution, “the people” have “rights” and “powers,” but federal and state governments only have “powers” or “authority”, never “rights.” Moreover, the Constitution’s text likewise recognizes not only the difference between the “militia” and “the people” but also between the “militia” which has not been “call[ed] forth” and “the militia, when in actual service.”

Id. at 227-28 (citing constitutional provisions).

           Emerson upheld the law in question, 18 U.S.C. § 922(g)(8), which prohibits firearm possession by a person subject to a domestic violence restraining order.  The defendant in that case had notice and an opportunity to be heard, and Texas law requires that such restraining orders be entered only if the judge determines factually that the person is a danger.  (The district court in Emerson had interpreted the order to have been a routine, boiler plate order entered without factual findings.)

           Frey argues that Emerson’s holding that the Second Amendment protects individual rights was “inconsistent with a long line of decisions of the Supreme Court . . . .”  To the contrary, Emerson is consistent with every Supreme Court decision which so much as mentions the Second Amendment.  Frey lectured Olson that the government should not file a brief which, “like the Fifth Circuit, gratuitously explicates its interpretation of the Second Amendment.”

           If the Second Amendment is addressed, argued Frey, the government should contend that the amendment only protects arms-bearing in the militia.  This had been argued by the government in the 1939 Miller case involving whether Congress could tax and register machineguns and short-barreled shotguns.  Indeed, that brief argued that the right extended only to “the people collectively” and only “as members of the state militia.” [2]

           However, the Supreme Court in United States v. Miller, 307 U.S. 174 (1939), did not even address that argument and held instead that the Second Amendment test was whether “this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”  307 U.S. at 178. The Court never suggested that the possessor had to be in the militia.  Moreover, the Court noted that historically “the Militia comprised all males physically capable of acting in concert for the common defense” and that “these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”  Id. at 179.

           The government brief in Miller did not represent the position of the United States.  That position was made clear two years later in the Property Requisition Act, which gave the President the power to requisition property for wartime use.  It declared that nothing in the act shall be construed:

(1)  to authorize the requisitioning or require the registration of any firearms possessed by any individual for his personal protection or sport (and the possession of which is not prohibited or the registration of which is not required by existing law),

(2)  to impair or infringe in any manner the right of any individual to keep and bear arms,

P.L. 274, Ch. 445, 55 Stat., pt. 1, 742 (1941).  This was a law duly passed by Congress and signed by President Franklin D. Roosevelt.  Obviously, the United States considered the Second Amendment to protect individual rights.

           Similarly, the position of the United States was declared in the Firearms Owners’ Protection Act of 1986, which provides: “The Congress finds that – (1) the rights of citizens – (A) to keep and bear arms under the second amendment to the United States Constitution . . . require additional legislation to correct existing firearms statutes and enforcement policies . . . .”  §1(b), P.L. 99-308, 100 Stat. 449 (1986).  This too was passed by Congress and was signed by President Ronald Reagan.  Would Mr. Frey contend that the “position of the United States” is set by lawyers at the Justice Department instead of by such duly-enacted acts of Congress? [3]

           Oblivious to the above, Frey gropes for support from other Supreme Court decisions, but finds none.  He quotes Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897), as saying that “right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons,” yet that statement presupposes that the right to carry arms is protected by the Second Amendment but that concealed weapons may be regulated.  He disregards the Court’s language that “the first ten Amendments to the constitution . . . were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we inherited from our English ancestors . . . .”  Id.  It would be absurd to say that a State power to maintain a militia was inherited from our English ancestors – for starters, England did not even have States.

           Frey next quotes Lewis v. United States, 445 U.S. 55, 65 n.8 (1980), as saying that “the legislative restrictions on the use of firearms there at issue ‘are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties.’”  He fails to disclose that the restriction at issue was a ban on possession of a firearm by a felon.  By engaging in crime, felons forfeit civil rights, including gun possession.

           The government has argued in past cases, asserts Frey, that the Second Amendment does not protect an individual right.  But what matters is the meaning of the Amendment based on the most recent and comprehensive scholarship, not what this or that government lawyer argued in the past.  Moreover, several of the briefs Frey cites do not even say that.  E.g., the opposition to petition for certiorari in Cody v. United States, No. 20452 (8th Cir. 1971), is quoted only as stating that “the Second Amendment does not bar regulation of firearms,” a proposition which could be made about any constitutional right.

           Frey quotes from the government’s reply brief in the court of appeals in Emerson that the “historical context” demonstrates that the Second Amendment only protects the states against the federal government and “that it grew out of a long history of gun control.”  Such assertions are wishful fantasy.  That brief, like Frey’s letter, avoids any serious discussion of the intent of the Framers, the debates on the Constitution, and generally what was said about the Second Amendment when it was adopted.  Frey tries to counterpose the views which Ashcroft set forth in his May 17, 2001, letter on the Second Amendment to the National Rifle Association with the “institutional” views of the Department, without any reference to the validity of the content of the Ashcroft letter – which quotes the Framers – or that of the Department’s recent position.  What counts is the Constitution as understood by the most credible authorities, not a bureaucratic impulse to win cases at any cost.

           In Machiavellian fashion, Frey writes as if the Solicitor General should never concede the existence of a constitutional right because it may interfere with winning a case, and that it is his duty to uphold any assertion of power by the federal government without any regard to constitutional constraints.  He equates Ashcroft’s candid assessment that the Constitution must be respected with the misguided views of “the current Administration.”  Yet the Clinton Administration was hostile to the Second Amendment as a matter of policy.  Attorney General Janet Reno never exhibited any knowledge whatever of the meaning or history of the Second Amendment.  To pretend that the anti-Second Amendment policies reflected in the government’s briefs in the lower courts in Emerson are somehow binding on the Department today assumes that past errors cannot be corrected.

           Frey disputes Ashcroft’s statement that “the individual rights view is embraced by the preponderance of legal scholarship on the subject,” but cites only a smattering of law review articles which include not one iota of evidence that a single person in the 1787-91 period denied the individual character of the right to keep and bear arms.  The scholarship upholding the individual rights view literally overwhelms the proponents of a “collective right,” which is an oxymoron.  As noted by Justice Clarence Thomas, concurring in Printz v. United States, 521 U.S. 898, 939 n.2 (1997):

Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the “right to keep and bear arms” is, as the Amendment’s text suggests, a personal right. See, e.g., J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 162 (1994); S. Halbrook, That Every Man Be Armed, The Evolution of a Constitutional Right (1984) . . . . [4]

           The above two books give definitive accounts of the Founders’ views that the Second Amendment protects individual rights. [5]   No author has written a book showing that the Founders espoused the “collective rights” view, for no Founder ever took that position, which was fabricated in the mid-twentieth century.  Scores of law review articles support the individual rights view, while only a handful advocate “collective rights.”  E.g., see Laurence H. Tribe, American Constitutional Law (2000) 897-98 n.211.

           The Emerson decision itself is a significant source for statements by the Founders which make clear their intent to protect individual rights.  Not one of the many appellate opinions string cited by Frey compares even remotely to the depth of research exhibited in Emerson.  In fact, these decisions dwarf intellectually in the presence of Emerson.  These decisions include no analysis of the intent of the Framers and can all be traced to a mid-twentieth century precedent which first adopted the “collective rights” hypothesis.  That case is Tot v. United States, 131 F.2d 261 (3rd Cir. 1942), rev’d on other grounds, 319 U.S. 463 (1943).

           For its allegation that the Second Amendment “was not adopted with individual rights in mind,” Tot refers to statements by three persons who participated in the debate over the Constitution’s ratification.  Id. at 266 n.13.  On looking up the references, one finds nothing about the Second Amendment, but only concerns about the militia.  This kind of sloppy “scholarship” would get one an “F” in a freshman history class.  

           Once Tot concocted the “collective rights” theory, it was cited by other courts, and through a leap-frogging process, became and remains today the favored theory in many circuits.  When these decisions are traced to their origins in Tot, the house of cards collapses.

           Frey asserts that individual-rights scholars “turn to the same small set of historical references, including text and speeches from state ratification conventions, amendments incorporated into state constitutions, and choice quotations extracted from correspondence and other writings attributed to the Founders.”  The “collective rightists” have no references from the Founders to cite for their assertion that the Second Amendment embodies no individual rights.  That is why Mr. Frey includes no such quotation in his letter.

           Frey, who has never published any Second Amendment scholarship, claims that the above quotations are “taken out of context.”  It would be instructive to consider a small sample of these quotations.  In The Federalist No. 46, James Madison referred to “the advantage of being armed, which the Americans possess over the people of almost every other nation,” and noted that “the governments [of the kingdoms of Europe] are afraid to trust the people with arms.” [6]   Samuel Adams proposed that the “Constitution be never construed to authorize Congress . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms . . . .” [7]   When the Second Amendment was introduced in Congress, Tench Coxe published the following commentary which no one contradicted: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.” [8]

           The fact that the Founders were concerned with the militia does not imply that they were not concerned with a right of the people to keep and bear arms.  Indeed, they held that the exercise of the right, as the Amendment declares, would promote “a well regulated militia,” which they proclaimed to be “necessary for the security of a free state.”  The Framers used consistent word choice, referring to “the right of the people” not only “to keep and bear arms,” but also “peaceably to assemble” (First Amendment) and “to be secure in their persons, papers, houses, and effects from unreasonable searches and seizures” (Fourth Amendment).  They distinguished between “the people” with the right to bear arms from “the militia, when in actual service” (Fifth Amendment) and between the powers “reserved to the States respectively, or to the people” (Tenth Amendment).  The federal government and the States have “power” or “authority” (Art. I, § 8), but never a “right.”

           While Frey dares not cite the case, the Supreme Court in United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990), made clear that the Bill of Rights protects the rights of the citizenry at large, explaining:

           “The people” seems to have been a term of art employed in select parts of the Constitution. . . .  The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.”  See also U.S. Const., Amdt. 1, (“Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble”) . . . . While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

           Frey simply ignores the constitutional vocabulary in favor of the simplistic and illogical hypothesis that the concept of the militia is inconsistent with the right of the people to keep and bear arms.  The Framers thought just the reverse.

           Frey correctly notes the concern “that the Constitution did not require the federal government to arm the militia, nor did it expressly authorize the states to do so,” and that there was a “proposal to reaffirm the states’ control over their respective militias in an amendment to the Constitution . . . .”  Frey misidentifies that amendment as the Second Amendment.  He is unaware that an amendment to do just that was proposed and rejected.  Specifically, Virginia and others proposed the right to keep and bear arms as part of a bill of rights, and at the same time proposed structural amendments to the form of government, including a militia provision. [9]   When these same proposals were be made in the U.S. Senate, that body agreed to the right to bear arms as part of the bill of rights, but rejected the structural amendments, including the militia proposal.  The militia proposal read: “That each state, respectively, shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same . . . .” [10]

           In short, “the right of the people to keep and bear arms” became part of the Constitution.  The “power” of “each state” to organize its militia, when Congress neglected to do so, was rejected.  The “collective rightists” would turn history upside down: the language that passed really means the language that was rejected.

           Toward the end of his letter, Frey lays bare the real reason for denigrating the Second Amendment: “The Department’s prosecutorial efforts to enforce these [federal firearms] laws will be needlessly complicated if . . . the federal government endorses expanded ‘Second Amendment’ defenses.”  In other words, a defendant may argue that a statute is unconstitutional.  Of course, this is true of any constitutional right, and rightfully so.  One could write a revisionist history of the First Amendment arguing that it protects only government presses and then argue that a ban on private presses is constitutional.  If the Solicitor General dismisses the revisionist history as inaccurate, he is attacked as interfering with prosecutions of citizens exercising the right to a free press.

           Indeed, Frey continues: “This is especially true if the Department characterizes this new-found individual Second Amendment right as ‘fundamental’ and comparable in character and magnitude to First Amendment rights.”  Yet the test for whether something is a “fundamental right” is whether it is “explicitly or implicitly guaranteed by the Constitution.”  San Antonio School District v. Rodriguez, 411 U.S. 1, 33-34 (1973).  Moreover, the Supreme Court has denied that some Bill of Rights freedoms “are in some way less ‘fundamental’ than” others.  “Each establishes a norm of conduct which the Federal Government is bound to honor--to no greater or lesser extent than any other inscribed in the Constitution.  Moreover, we know of no principled basis on which to create a hierarchy of constitutional values . . . .” [11]   Valley Forge College v. Americans United, 454 U.S. 464, 484 (1982).

           Recognition of the existence of the Second Amendment, Frey asserts, means that “the ability of the United States to perform its task of defending the laws enacted by the Congress will be needlessly, and perhaps seriously, compromised . . . .”  This sky-is-falling alarm could be said of any constitutional right.  Failure to recognize the Constitution is lawlessness.

           Frey closes his letter by lecturing Solicitor General Olson that filing a brief in Emerson which recognizes the Second Amendment “is fraught with peril for the credibility of your Office and the administration in the eyes of the public and the Supreme Court.”  To the contrary, the credibility and reputation of elements of the judiciary and the legal profession have suffered in the past when they deny the undeniable – such as the assertion that “the right of the people to keep and bear arms” means that the people have no right to keep and bear arms.

           Reflecting Attorney General Ashcroft’s reasoned views, Olson disregarded Frey’s “advice” and on May 6, 2002, filed the brief on behalf of the United States with the Supreme Court in the Emerson case recognizing that the Second Amendment protects individual rights.  Favorably quoting from the Fifth Circuit’s Emerson opinion, the brief explains:

In its brief to the court of appeals, the government argued that the Second Amendment protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of the militia. The current position of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse.

           Attached to the brief is a Memorandum to all United States Attorneys from the Attorney General, Re: United States v. Emerson, dated November 9, 2001.  The memorandum promises to defend “all existing federal firearms laws” as consistent with the Second Amendment.  “The Department has a solemn obligation both to enforce federal law and to respect the constitutional rights guaranteed to Americans.”  U.S. Attorney’s offices were directed to advise the Criminal Division “of all cases in which Second Amendment issues are raised,” and to coordinate briefing with the Criminal Division and the Solicitor General’s office.  The memorandum closes with words that should be music to the ears of everyone who believes in the rule of law:

As the Supreme Court has long observed, the mission of the Department “in a criminal prosecution is not that it shall win a case, but that justice shall be done.”  Berger v. United States, 295 U.S. 78, 88 (1935).  Justice is best achieved, not by making any available argument that might win a case, but by vigorously enforcing federal law in a manner that heeds the commands of the Constitution.

           These temperate remarks apply to every provision of the Bill of Rights, including the Second Amendment.  The Violence Policy Center’s arrogant demands to Solicitor General Olson to violate this principle fell on deaf ears.  While persons may disagree about the application of the Constitution to specific laws, Ashcroft’s above statement counsels reassurance in the Attorney General’s integrity and, more importantly, in the preservation of our constitutional republic.


[1] Review was sought of the decision in United States v. Haney, 264 F.3d 1161 (10th Cir. 2001), which upheld the federal ban on possession of a machinegun.  Olson filed a response to this petition at the same time as the response to Emerson was filed.

[2] This was only one of several arguments made in the brief, which relied on a shotgun approach.  It also argued: “‘The right of the people to keep and bear arms’ recognized by the Second Amendment does not . . . guarantee to the criminal the right to maintain and utilize arms which are particularly adaptable to his purposes.”  Most would agree with that proposition, but again the Supreme Court did not address it.  The brief of the United States even argued that the right “gave sanction only to the arming of the people as a body to defend their rights against tyrannical and unprincipled rulers.”  Query whether Mr. Frey and the VPC endorse that view just because it was asserted in a government brief.

[3] Similarly, the Freedmen’s Bureau Act of 1866 provided that “the right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color or previous condition of slavery.”  14 Stat. 176-77 (1866).

[4] Justice Thomas further cites Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L. J. 1236 (1994); Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L. J. 1193 (1992); Cottrol & Diamond, The Second Amendment: Toward an Afro‑Americanist Reconsideration, 80 Geo. L. J. 309 (1991); Levinson, The Embarrassing Second Amendment, 99 Yale L. J. 637 (1989); Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983).

[5] See also Halbrook, A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees (1989); Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 (1998).

[6] 15 Documentary History of the Ratification of the Constitution 492-93 (1986).

[7] Debates of the Massachusetts Convention of 1788 at 86-87, 266 (Boston, 1856).

[8]   Federal Gazette, June 18, 1789, at 2, col. 1.

[9] 3 J. Elliot, Debates in the Several State Conventions 660 (1836).

[10] Journal of the First Session of the Senate 75 (1820).

[11]   The Court further stated in Ullman v. United States, 350 U.S. 422, 426-29 (1956):  

           This constitutional protection must not be interpreted in a hostile or niggardly spirit. . . .  Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States. . . .

           As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion. . . .  To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it.  This is to disrespect the Constitution.

Distinguished author and lawyer Stephen P. Halbrook has written extensively on the Constitution and the Second Amendment in particular. He is the author of That Every Man Be Armed: The Evolution of a Constitutional Right, (Independent Institute, 2000) the most comprehensive work ever written on the right to keep and bear arms.

Posted: 5/14/2002
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