USA v. Emerson (5th Cir. 2001)

REVISED OCTOBER 18, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-10331

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

TIMOTHY JOE EMERSON,

Defendant-Appellee.

Appeals from the United States District Court

for the Northern District of Texas

October 16, 2001

Before GARWOOD, DeMOSS and PARKER, Circuit Judges.

GARWOOD, Circuit Judge:

The United States appeals the district court’s dismissal of the indictment of Defendant-Appellee Dr. Timothy Joe Emerson (Emerson) for violating 18 U.S.C. § 922(g)(8)(C)(ii). The district court held that section 922(g)(8)(C)(ii) was unconstitutional on its face under the Second Amendment and as applied to Emerson under the Due Process Clause of the Fifth Amendment. We reverse and remand.

Facts and Proceedings Below

On August 28, 1998, Sacha Emerson, Emerson’s wife, filed a petition for divorce in the 119th District Court of Tom Green County, Texas. The petition also requested, inter alia, a temporary injunction enjoining Emerson from engaging in any of twenty-nine enumerated acts. On September 4, 1998, Judge Sutton held a temporary orders evidentiary hearing. Sacha Emerson was represented by counsel while Emerson appeared pro se. There is no evidence that Emerson was unable (financially or otherwise) to retain counsel for the hearing or that he desired representation by counsel on that occasion. He announced ready at the beginning of the September 4 hearing. Almost all of Sacha Emerson’s direct testimony concerned financial matters, but the following relevant exchange took place on direct examination by her attorney:

Q You are here today asking the Court for temporary orders regarding yourself and your daughter; is that correct?

A Yes.

Q You have asked in these restraining orders regarding Mr. Emerson in that he not communicate with you in an obscene, vulgar, profane, indecent manner, in a coarse or offensive manner?

A Yes.

Q He has previous to today threatened to kill you; is that correct?

A He hasn’t threatened to kill me. He’s threatened to kill a friend of mine.

Q Okay. And he has threatened – he has made some phone calls to you about that?

A Yes.^[1]

Emerson declined an opportunity to cross-examine Sacha and presented no evidence tending to refute any of her above quoted testimony or to explain his conduct in that respect. In his testimony he stated in another connection, among other things, that he was suffering from “anxiety” and was not “mentally in a good state of mind.”

On September 14, 1998, Judge Sutton issued a temporary order that included a “Temporary Injunction” which stated that Emerson “is enjoined from” engaging in any of twenty-two enumerated acts, including the following:

“2. Threatening Petitioner in person, by telephone, or in writing to take unlawful action against any person.”

“4. Intentionally, knowingly, or recklessly causing bodily injury to Petitioner or to a child of either party.”

“5. Threatening Petitioner or a child of either party with imminent bodily injury.”

On December 8, 1998, the grand jury for the Northern District of Texas, San Angelo division, returned a five-count indictment against Emerson. The government moved to dismiss counts 2 through 5, which motion the district court subsequently granted.^[3] Count 1, the only remaining count and the count here at issue, alleged that Emerson on November 16, 1998, unlawfully possessed “in and affecting interstate commerce” a firearm, a Beretta pistol, while subject to the above mentioned September 14, 1998 order, in violation of 18 U.S.C. § 922(g)(8). It appears that Emerson had purchased the pistol on October 10, 1997, in San Angelo, Texas, from a licensed firearms dealer. Emerson does not claim that the pistol had not previously traveled in interstate or foreign commerce. It is not disputed that the September 14, 1998 order was in effect at least through November 16, 1998.

Emerson moved pretrial to dismiss the indictment, asserting that section 922(g)(8), facially and as applied to him, violates the Second Amendment and the Due Process Clause of the Fifth Amendment. He also moved to dismiss on the basis that section 922(g)(8) was an improper exertion of federal power under the Commerce Clause and that, in any case, the law unconstitutionally usurps powers reserved to the states by the Tenth Amendment. An evidentiary hearing was held on Emerson’s motion to dismiss.

The district court granted Emerson’s motions to dismiss. Subsequently, the district court issued an amended memorandum opinion reported at 46 F.Supp.2d 598 (N.D. Tex. 1999). The district court held that dismissal of the indictment was proper on Second or Fifth Amendment grounds, but rejected Emerson’s Tenth Amendment and Commerce Clause arguments.

The government appealed. Emerson filed a notice of cross-appeal, which was dismissed by this Court. The government challenges the district court’s dismissal on Second and Fifth Amendment grounds. Emerson defends the district court’s dismissal on those grounds and also urges that dismissal was in any event proper under the Commerce Clause and on statutory grounds.

Discussion

I. Construction of 18 U.S.C. § 922(g)(8)

18 U.S.C. § 922 provides in relevant part:

“(g) It shall be unlawful 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; or

....

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.”

Emerson argues that section 922(g)(8)(C)(ii) should be construed to require that the particular predicate court order include an explicit finding that the person enjoined posed a credible threat of violence to his spouse or child. Emerson further argues that the statute must also be read to require that the predicate order be supported by sufficient evidence before the court entering it to sustain such a finding, so that the court in the criminal prosecution must examine the record in the proceeding before the court entering the predicate order and must acquit the defendant in the criminal case if the evidence before the court entering the predicate order was not sufficient to sustain such a finding. It is, of course, our duty to construe a statute so as to avoid any serious constitutional questions. However, the statute must be susceptible to that construction, i.e. our construction must be fairly possible; the duty to avoid constitutional questions is not a license to rewrite the statute. Jones v. United States, 119 S.Ct. 1215, 1222 (1999); Feltner v. Columbia Pictures Television, Inc., 118 S.Ct. 1279, 1283 (1998); United States v. Albertini, 105 S.Ct. 2897, 2902 (1985). “If the statutory language is unambiguous, in the absence of ‘a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.’” Russello v. United States, 104 S.Ct. 296, 299 (1983) (quoting United States v. Turkette, 101 S.Ct. 2524, 2527 (1981)). In addition, if uncertainty remains after an examination of the statute’s text, its legislative history and the policies it advances, the rule of lenity requires this uncertainty to be resolved in favor of Emerson. United States v. Prestenbach, 230 F.3d 780, n.23 (5th Cir. 2000).

Turning first to Emerson’s second statutory argument, there is nothing in the text of the statute to support it. Moreover, it is contrary to uniform construction of section 922(g) and its predecessors under which the courts have construed this and other similar subsections of section 922. See, e.g., Lewis v. United States, 100 S.Ct. 915 (1980); United States v. Chambers, 922 F.2d 228, 232-40 (5th Cir. 1991). Just as Lewis observed that “nothing [in the statutory text] suggests any restriction on the scope of the term ‘convicted,’” id. at 918, so also nothing in section 922(g)(8) suggests that the validity of the particular predicate court order may be inquired into in the section 922(g)(8) criminal prosecution. Moreover, this is consistent with the long standing federal rule that violation of an injunction that is subsequently invalidated may, at least so long as it cannot be characterized as having only a transparent or frivolous pretense to validity, be punished as criminal contempt. See Chambers at 239-40; National Maritime Union v. Aquaslide ‘N’ Drive Corp., 737 F.2d 1395, 1399-1400 (5th Cir. 1984).^[4]

We likewise reject the argument that section 922(g)(8) requires that the predicate order contain an express judicial finding that the defendant poses a credible threat to the physical safety of his spouse or child. If the requirements of 922(g)(8)(A) and (B) are fulfilled, then by its terms section 922(g)’s firearms disability attaches if either clause (C)(i) or clause (C)(ii) applies. Although an express judicial finding of future dangerousness pursuant to section 922(g)(8)(C)(i) is one way section 922(g)(8)’s firearms disability can attach, to construe section 922(g)(8) as always requiring an express judicial finding would be to substitute the word “and” for the word “or” that appears at the end of 922(g)(8)(C)(i). If Congress intended to require an express judicial finding, it would have arranged the elements as 922(g)(8)(A)-(D) and used the word “and” rather than “or” to join them.

Notwithstanding the lack of textual ambiguity, Emerson maintains that we should either imply the express judicial finding requirement into section 922(g)(8) or at least recognize the lack of an express judicial finding as an affirmative defense to section 922(g)(8). He argues that, without the requirement of an express judicial finding, sections 922(g)(8)(B) and (C)(ii) are redundant while section 922(g)(8)(A) is rendered a nullity. While there is some overlap between section 922(g)(8)(B) and (C)(ii), each still has some independent scope in the statutory scheme. Section 922(g)(8)(B) broadly refers to orders that restrain harassing, stalking or threatening. It is quite possible that an order could surmount the section 922(g)(8)(B) hurdle and yet only fulfill one of the section 922(g)(8)(C) criteria. Congress obviously felt that if the order only “restrains” harassing, stalking, threatening, or otherwise causing fear of injury, an express judicial finding of a credible threat of violence was necessary. Section 922(g)(8)(B) and (C)(i). However, if the order “by its terms explicitly prohibits” the use, attempted use or threatened use of physical force, no such express finding was necessary. Section 922(g)(8)(C)(ii). Thus, Congress affirmatively drew a distinction between orders “explicitly prohibiting” the actual, attempted or threatened physical attack and those merely “restraining” stalking or harassment. It is true that both sections embrace orders that proscribe threats, but this degree of congruence is insufficient to overcome the plain meaning of the text. Nor do we agree that the absence of a requirement of an express judicial finding renders section 922(g)(8)(A) a nullity.

Emerson also argues that the word “restrain”, as used in 922(g)(8)(B), necessarily requires an express judicial finding that the defendant poses a credible threat of violence to his spouse or child. The argument is simply that both temporary and permanent injunctions traditionally require, in addition to notice and hearing, some express judicial finding supporting the court’s order. While this may be generally true, it is not invariably the case that injunctions must contain such findings and, more importantly, the argument made does not overcome the fact that Congress specifically required notice and hearing in all section 922(g)(8) cases but affirmatively and specifically required an express finding only in cases governed by clause (C)(i). The crux of the matter is that we cannot imply in clause (C)(ii) an express finding requirement that is not stated in it while being affirmatively and specifically stated in clause (C)(i).

Relying on the legislative history of section 922(g)(8), Emerson and amicus the State of Alabama contend that all three versions of the bill (one from the House, two from the Senate) that went to the Conference Committee required an express judicial finding. They contend that the real purpose of section 922(g)(8)(C)(ii) is to close a “loophole” in section 922(g)(8) that would have prevented it from applying if the express judicial finding was not in the order itself, but instead, for example, in an accompanying memorandum. We find neither argument ultimately persuasive. Contrary to the assertions of Emerson and the State of Alabama, one of the Senate versions of the bill that went to the Conference Committee did authorize a firearms disability without any express judicial finding. This version resulted from amendment 1179 to S.1607, submitted by Senator Biden for Senator Wellstone on November 10, 1993. Amendment 1179 provided, in relevant part:

“(8)(A) has been convicted in any court of an offense that-

(i) involves the use, attempted use, or threatened use of physical force against a person who is a spouse, former spouse, domestic partner, child, or former child of the person; or

(ii) by its nature, involves a substantial risk that physical force against a person who is a spouse, former spouse, domestic partner, child, or former child of the person may be used in the course of committing the offense; or

(B) is required, pursuant to an order issued by any court in a case involving a person described in subparagraph (A), to refrain from any contact with or to maintain a minimum distance from that person, or to refrain from abuse, harassment, or stalking of that person.”

139 Cong. Rec. S15638-03, *S15650. This language was sent to the Conference Committee on November 24, 1993, and clearly contemplates a firearms disability without either a conviction or an express judicial finding of future dangerousness. 139 Cong. Rec. S17095-03, *S17174.^[5] Emerson’s contention that 922(g)(8)(C)(ii)’s presence in the statute cannot be explained by anything sent to the Conference Committee is unfounded. Similarly, there is nothing in the legislative history suggesting that Congress, or any of its committees or members, ever addressed, considered or had called to its or their attention the supposed “loophole” in the statutory scheme now put forth by Emerson.

Because the construction urged by Emerson is not fairly possible, we must decline his invitation to rewrite section 922(g)(8). Likewise, because section 922(g)(8) is not ambiguous, the rule of lenity provides no basis for relief.

II. Due Process Clause of the Fifth Amendment

The district court held that prosecution for violating section 922(g)(8) would deprive Emerson of his Fifth Amendment right to Due Process because: 1) Dr. Emerson did not know that possession of a firearm while being subject to the September 14, 1998 order was a crime; 2) section 922(g)(8) is an “obscure criminal provision” that would be difficult for Emerson to discover; 3) there is nothing inherently evil about possessing a firearm; and 4) Emerson had no reason to suspect that being subject to the September 14, 1998 order would criminalize otherwise lawful behavior. United States v. Emerson, 46 F.Supp.2d 598, 611-13. The district court relied upon Lambert v. California, 78 S.Ct. 240, 243 (1957), in which the Supreme Court struck down a Los Angeles law requiring resident felons to register with the city. The Supreme Court observed that: 1) the defendant had been prosecuted for passive activity; 2) the defendant was unaware of the need to register; 3) circumstances that would have prompted an inquiry into the necessity of registration were lacking; and 4) an average member of the community would not consider the punished conduct blameworthy. Id.

At the outset, we note that “[t]he sweep of the Lambert case has been limited by subsequent decisions of the Supreme Court, lest it swallow the general rule that ignorance of the law is no excuse.” United States v. Giles, 640 F.2d 621, 628 (5th Cir. 1981). 18 U.S.C. § 924(a)(2) provides that the required mens rea for conviction under section 922(g) is knowledge (“Whoever knowingly violates subsection . . . (g) . . . of section 922 . . .”). “Knowingly”–in contrast to at least some uses of “wilfully”–does not require that the defendant know that his actions are unlawful, but only that he know he is engaging in the activity that the legislature has proscribed. Bryan v. United States, 118 S.Ct. 1939, 1945-47 (1998). Bryan explained that Staples v. United States, 114 S.Ct. 1793 (1994), exemplifies this distinction. In Staples, the Supreme Court held that conviction for unlawful possession of a machine gun did not require knowledge that machine gun possession was unlawful, but only knowledge that the weapon possessed was a machine gun. Bryan, 118 S.Ct. at 1946 (under Staples “[i]t was not, however, necessary, to prove that the defendant knew that his possession was unlawful”). Here, there is no question that Emerson was aware that on November 16, 1998, he actively possessed a firearm of the kind covered by the statute while subject to the September 14, 1998 order or that he misapprehended the actual contents of that order.^[6]

Moreover, Emerson filled out and signed BATF Form 4473 when, on October 10, 1997, he purchased the Beretta semi-automatic pistol referred to in Count 1. This afforded notice to Emerson that so long as he was under a court order such as that of September 14, 1998, federal law prohibited his continued possession of that weapon.^[7] In Giles, we distinguished Lambert on this basis (as well as others), noting “Giles’ situation, of course, is far different from that of Ms. Lambert, for he was directly confronted with accurate written notice of the conduct proscribed by the statute [then § 922(h)(1)] when he filled out and signed a Form 4473 as part of each firearm purchase.” Giles, 640 F.2d at 628. Finally, we agree with the district court that firearms ownership is not inherently evil or suspect and that thus a certain mens rea is required. Staples, 114 S.Ct. at 1799-1801. However, Bryan and Staples make clear that the necessary mens rea in this context does not require knowledge of the law but merely of the legally relevant facts. Giles rejects application of Lambert at least where, as here, there is the notice provided by the Form 4473. For these reasons, we hold that Emerson’s case does not merit relief under Lambert, and that the district court erred when it granted Emerson’s motion to dismiss the indictment as violating his Fifth Amendment Due Process rights on that basis.

III. Commerce Clause

The district court rejected Emerson’s contention that, in enacting section 922(g)(8), Congress exceeded its power under the Commerce Clause. As the district court noted, this Court has held that, because section 922(g)(8) only criminalizes the possession of firearms or ammunition “in or affecting commerce” and the reception of firearms that have been “shipped or transported in interstate or foreign commerce”, Congress did not exceed its Article I, Section 8 powers in enacting it. United States v. Pierson, 139 F.3d 501, 503 (5th Cir.), cert. denied, 119 S.Ct. 220 (1998). Accordingly, the district court, as bound by this precedent as we are, did not err in denying Emerson’s motion to dismiss the indictment on Commerce Clause grounds.^[8]

IV. Tenth Amendment

The district court held that congressional enactment of section 922(g)(8) did not violate the Tenth Amendment to the Constitution. Finding no reference to this issue in Emerson’s brief to this Court, we must consider his Tenth Amendment claim abandoned.

V. Second Amendment

The Second Amendment provides:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

A. Introduction and Overview of Second Amendment Models

The district court held that the Second Amendment recognizes the right of individual citizens to own and possess firearms, and declared that section 922(g)(8) was unconstitutional on its face because it requires that a citizen be disarmed merely because of being subject to a “boilerplate [domestic relations injunctive] order with no particularized findings.” Emerson, 46 F.Supp.2d at 611. The government opines that stare decisis requires us to reverse the district court’s embrace of the individual rights model. Amici for the government argue that even if binding precedent does not require reversal, the flaws in the district court’s Second Amendment analysis do.

In the last few decades, courts and commentators have offered what may fairly be characterized as three different basic interpretations of the Second Amendment. The first is that the Second Amendment does not apply to individuals; rather, it merely recognizes the right of a state to arm its militia.^[9] This “states’ rights” or “collective rights” interpretation of the Second Amendment has been embraced by several of our sister circuits.^[10] The government commended the states’ rights view of the Second Amendment to the district court, urging that the Second Amendment does not apply to individual citizens.

Proponents of the next model admit that the Second Amendment recognizes some limited species of individual right. However, this supposedly “individual” right to bear arms can only be exercised by members of a functioning, organized state militia who bear the arms while and as a part of actively participating in the organized militia’s activities. The “individual” right to keep arms only applies to members of such a militia, and then only if the federal and state governments fail to provide the firearms necessary for such militia service. At present, virtually the only such organized and actively functioning militia is the National Guard, and this has been the case for many years. Currently, the federal government provides the necessary implements of warfare, including firearms, to the National Guard, and this likewise has long been the case. Thus, under this model, the Second Amendment poses no obstacle to the wholesale disarmament of the American people. A number of our sister circuits have accepted this model, sometimes referred to by commentators as the sophisticated collective rights model.^[11] On appeal the government has abandoned the states’ rights model and now advocates the sophisticated collective rights model.

The third model is simply that the Second Amendment recognizes the right of individuals to keep and bear arms. This is the view advanced by Emerson and adopted by the district court. None of our sister circuits has subscribed to this model, known by commentators as the individual rights model or the standard model. The individual rights view has enjoyed considerable academic endorsement, especially in the last two decades.^[12]

We now turn to the question of whether the district court erred in adopting an individual rights or standard model as the basis of its construction of the Second Amendment.

B. Stare Decisis and United States v. Miller

Only in United States v. Miller has the Supreme Court rendered any holding respecting the Second Amendment as applied to the federal government.^[13] There, the indictment charged the defendants with transporting in interstate commerce, from Oklahoma to Arkansas, an unregistered “Stevens shotgun having a barrel less than 18 inches in length” without having the required stamped written order, contrary to the National Firearms Act.^[14] The defendants filed a demurrer challenging the facial validity of the indictment on the ground that “[t]he National Firearms Act . . . offends the inhibition of the Second Amendment,” and “[t]he District Court held that section 11 of the Act [proscribing interstate transportation of a firearm, as therein defined, that lacked registration or a stamped order] violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.” Id. at 817-18. The government appealed, and we have examined a copy of its brief.^[15] The Miller defendants neither filed any brief nor made any appearance in the Supreme Court.

The government’s Supreme Court brief “[p]reliminarily” points out that:

“. . . the National Firearms Act does not apply to all firearms but only to a limited class of firearms. The term ‘firearm’ is defined in Section 1 of the Act. . . to refer only to ‘a shotgun or rifle having a barrel of less than 18 inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition.’” (id. at 6).

In this connection the brief goes on to assert that it is “indisputable that Congress was striking not at weapons intended for legitimate use but at weapons which form the arsenal of the gangster and the desperado” (id. at 7) and that the National Firearms Act restricts interstate transportation “of only those weapons which are the tools of the criminal” (id. at 8).

The government’s brief thereafter makes essentially two legal arguments.

First, it contends that the right secured by the Second Amendment is “only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state.” Id. at 15. This, in essence, is the sophisticated collective rights model.

The second of the government’s two arguments in Miller is reflected by the following passage from its brief:

“While some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property as well as the right of the people to bear them collectively (People v. Brown, 253 Mich. 537; State v. Duke, 42 Tex. 455), the cases are unanimous in holding that the term “arms” as used in constitutional provisions refers only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals. Thus in Aymette v. State [2 Humph., Tenn. 154 (1840)], supra, it was said (p. 158):

‘As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution.’” (Id. at 18-19).^[16]

“That the foregoing cases conclusively establish that the Second Amendment has relation only to the right of the people to keep and bear arms for lawful purposes and does not conceivably relate to weapons of the type referred to in the National Firearms Act cannot be doubted. Sawed-off shotguns, sawed-off rifles and machine guns are clearly weapons which can have no legitimate use in the hands of private individuals.”

Thereafter, the government’s brief in its “conclusion” states: “. . . we respectfully submit that Section 11 of the National Firearms Act does not infringe ‘the right of the people to keep and bear arms’ secured by the Second Amendment.”

Miller reversed the decision of the district court and “remanded for further proceedings.” Id. at 820. We believe it is entirely clear that the Supreme Court decided Miller on the basis of the government’s second argument–that a “shotgun having a barrel of less than eighteen inches in length” as stated in the National Firearms Act is not (or cannot merely be assumed to be) one of the “Arms” which the Second Amendment prohibits infringement of the right of the people to keep and bear–and not on the basis of the government’s first argument (that the Second Amendment protects the right of the people to keep and bear no character of “arms” when not borne in actual, active service in the militia or some other military organization provided for by law”). Miller expresses its holding, as follows:

“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn. 154, 158.” Id. at 818 (emphasis added).

Note that the cited page of Aymette (p. 158) is the page from which the government’s brief quoted in support of its second argument (see text at call for n.16 supra).^[18]

Nowhere in the Court’s Miller opinion is there any reference to the fact that the indictment does not remotely suggest that either of the two defendants was ever a member of any organized, active militia, such as the National Guard, much less that either was engaged (or about to be engaged) in any actual military service or training of such a militia unit when transporting the sawed-off shotgun from Oklahoma into Arkansas. Had the lack of such membership or engagement been a ground of the decision in Miller, the Court’s opinion would obviously have made mention of it. But it did not.^[19]

Nor do we believe that any other portion of the Miller opinion supports the sophisticated collective rights model.

Just after the above quoted portion of its opinion, the Miller court continued in a separate paragraph initially quoting the militia clauses of article 1, § 8 (clauses 15 and 16)^[20] and concluding:

“With obvious purpose to assure the continuation and render possible the effectiveness of such forces [militia] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” Id. at 818.

Miller then proceeds to discuss what was meant by the term “militia,” stating in part:

“The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. . . . ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

. . .

“The American Colonies In the 17th Century,” Osgood, Vol. 1, ch. XIII, affirms in reference to the early system of defense in New England–

“In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.’” Id. at 818 (emphasis added).

“The General Court of Massachusetts, January Session 1784 (Laws and Resolves 1784, c. 55, pp. 140, 142), provided for the organization and government of the Militia. It directed that the Train Band should ‘contain all able bodied men, from sixteen to forty years of age, and the Alarm List, all other men under sixty years of age, * * *.’” Id. at 819 (emphasis added).

These passages from Miller suggest that the militia, the assurance of whose continuation and the rendering possible of whose effectiveness Miller says were purposes of the Second Amendment, referred to the generality of the civilian male inhabitants throughout their lives from teenage years until old age and to their personally keeping their own arms, and not merely to individuals during the time (if any) they might be actively engaged in actual military service or only to those who were members of special or select units.

We conclude that Miller does not support the government’s collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter it cuts against the government’s position. Nor does the government cite any other authority binding on this panel which mandates acceptance of its position in this respect.^[21] However, we do not proceed on the assumption that Miller actually accepted an individual rights, as opposed to a collective or sophisticated collective rights, interpretation of the Second Amendment. Thus, Miller itself does not resolve that issue.^[22] We turn, therefore, to an analysis of history and wording of the Second Amendment for guidance. In undertaking this analysis, we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment.

C. Text

We begin construing the Second Amendment by examining its text: “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II.

1. Substantive Guarantee

a. “People”

The states rights model requires the word “people” to be read as though it were “States” or “States respectively.” This would also require a corresponding change in the balance of the text to something like “to provide for the militia to keep and bear arms.” That is not only far removed from the actual wording of the Second Amendment, but also would be in substantial tension with Art. 1, § 8, Cl. 16 (Congress has the power “To provide for . . . arming . . . the militia. . .”). For the sophisticated collective rights model to be viable, the word “people” must be read as the words “members of a select militia”.^[23] The individual rights model, of course, does not require that any special or unique meaning be attributed to the word “people.” It gives the same meaning to the words “the people” as used in the Second Amendment phrase “the right of the people” as when used in the exact same phrase in the contemporaneously submitted and ratified First and Fourth Amendments.

There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words “the people” have a different connotation within the Second Amendment than when employed elsewhere in the Constitution. In fact, the text of the Constitution, as a whole, strongly suggests that the 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.”^[24] 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.”^[25]

Our view of the meaning of “the people,” as used in the Constitution, is in harmony with the United States Supreme Court’s pronouncement in United States v. Verdugo-Urquidez, 110 S.Ct. 1056, 1060-61 (1990), that:

“‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by ‘the People of the United States.’ The Second Amendment protects ‘the right of the people to keep and bear Arms,’ and the Ninth and Tenth Amendments provide that certain rights and powers are retained by

and reserved to ‘the people.’ While this textual exegesis is by no means conclusive, it suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of people who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” (citations omitted)

Several other Supreme Court opinions speak of the Second Amendment in a manner plainly indicating that the right which it secures to “the people” is an individual or personal, not a collective or quasi-collective, right in the same sense that the rights secured to “the people” in the First and Fourth Amendments, and the rights secured by the other provisions of the first eight amendments, are individual or personal, and not collective or quasi-collective, rights. See, e.g., Planned Parenthood v. Casey, 112 S.Ct. 2791, 2805 (1992); Moore v. City of East Cleveland, 97 S.Ct. 1932, 1937 (1977);^[26] Robertson v. Baldwin, supra (see quotation in note 17 supra); Scott v. Sandford, 60 U.S. (19 How) 393, 417, 450-51, 15 L.Ed. 691, 705, 719 (1856). See also Justice Black’s concurring opinion in Duncan v. Louisiana, 88 S.Ct. 1444, 1456 (1968).^[27]