By 1774, the British were engaged in massive search-and-seizure operations for firearms. Worchester County admonished General Gage that "they apprehend the People justified in providing for their own Defense, while they understood there was no passing the Neck without Examination, . . . & many places searched, where Arms and Ammunition were suspected to be; and if found seized; yet as the People have never acted offensively, nor discovered any disposition so to do, as above related, the County apprehend this can never justify the seizure of private Property." Boston Gazette, Oct. 17, 1774, at 2. In another incident, "what most irritated the People next to seizing their Arms and Ammunition, was the apprehending six gentlemen, select men of the town of Salem, who had assembled a Town meeting." Boston Gazette, Dec. 5, 1774, at 4.

After attempting to seize the arms of militiamen at Lexington and Concord, General Gage proclaimed that citizens would be allowed to leave occupied Boston only after they surrendered their firearms. In the Declaration of Causes of Taking Up Arms of July 6, 1775, the Continental Congress explained what happened: "It was stipulated that the said inhabitants having deposited their arms with their own magistrates, should have liberty to depart . . . . They accordingly delivered up their arms, but in open violation of honor, . . . the governor ordered the arms deposited as aforesaid, that they might be preserved for the owners, to be seized by a body of soldiers . . . ." Connecticut Courant, July 17, 1775, at 2. Gage not only sought to disarm militias, but proclaimed that "all persons in whose possession any fire arms may hereafter be found, will be deemed enemies to his majesty's government." New York Journal, Aug. 31, 1775, at 1.

The above is only a sampling of complaints by the colonists that the British violated their rights by seizing their private arms. For a definitive study, see S. Halbrook, "Encroachments of the Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment," 15 University of Dayton Law Review, 91 (Fall 1989). The historical evidence is unquestionable that the Second Amendment was prompted in part by the British policy of confiscating the firearms of individuals.

The right to have arms for individual and collective defense was recognized in the first state bills of rights. The Pennsylvania Declaration of Rights, Art. XIII (1776) provided: "That the people have a right to bear arms for defense of themselves, and the state . . . ." The Vermont Constitution, Art. I, � 15 (1777), is identical. While the case at bar is about the right to "keep" arms, this usage shows that the term "bear arms" extends to individual use of arms in self defense and is not limited to militia activity.⁽⁴⁾ The North Carolina Declaration of Rights, Art. XVII (1776), provided: "That the People have a Right to bear Arms for the Defense of the State . . . ." The Massachusetts Declaration of Rights, Art. XVII (1780) provided: "The people have a right to keep and bear arms for the common defense."⁽⁵⁾ The right of "the people" to "keep" arms clearly includes possession in the home, and this right was considered fundamental in all the States. See S. Halbrook, A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees (Westport, Conn.: Greenwood Press, 1989).

In sum, an important grievance of the colonists against the Crown was the seizure of private arms. Protection against this violation would find expression in the Second Amendment.

When the Constitution was proposed in 1787 without a bill of rights, proponents argued that one was unnecessary in a republic with an armed populace. In The Federalist No. 46, James Madison contended that any federal tyranny "would be opposed [by] a militia amounting to near half a million citizens with arms in their hands." Alluding to "the advantage of being armed, which the Americans possess over the people of almost every other nation," Madison continued: "Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." 15 Documentary History of the Ratification of the Constitution 492-93 (Kaminski & Saladino eds., 1986) (hereafter "Docu. Hist.").

The first demand for a bill of rights at a State ratification convention came from the Dissent of the Pennsylvania Minority, which proposed: "That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals . . . ." 2 Doc. Hist. 623-24 (Jensen ed., 1976). As this clarifies, the term "bear arms" extended to purposes such as self defense and hunting, and was not limited to militia service. Alexander White, a Federalist, responded:

There are other things so clearly out of the power of Congress, that the bare recital of them is sufficient, I mean the ". . . the rights of bearing arms for defence, or for killing game . . . ." These things seem to have been inserted among their objections, merely to induce the ignorant to believe that Congress would have a power over such objects and to infer from their being refused a place in the Constitution, their intention to exercise that power to the oppression of the people.

8 Doc. Hist. 404 (Kaminski & Saladino eds., 1988). The irony of White's argument is inescapable in light of the position of the government and its amici in this case that no personal right to keep arms exists and that no limits exist on the power of Congress to prohibit possession of firearms.

In the Massachusetts convention, Samuel Adams proposed: "And that the said Constitution be never construed to authorize Congress . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms . . . ." Debates of the Massachusetts Convention of 1788 at 86-87, 266 (Boston, 1856). The New Hampshire convention was the first actually to pass a demand for a bill of rights, which included: "Congress shall never disarm any citizen, unless such as are or have been in actual rebellion." 1 Elliot, Debates in the Several State Conventions 326 (1836) (hereafter cited as "Elliot").

Antifederalist Richard Henry Lee, who was in the forefront of those demanding a bill of rights, noted that "a militia, when properly formed, are in fact the people themselves." He added: "to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them . . . ." Lee, Additional Letters from the Federal Farmer 169-70 (1788).

In the Virginia convention, George Mason argued that "to disarm the people . . . was the best and most effectual way to enslave them . . . ." 3 Elliot 380. Patrick Henry averred that "the great object is, that every man be armed. . . . . Every one who is able may have a gun." Id. at 386. "Who are the militia, if they be not the people of this country," queried Mason. Id. at 425. The Virginia convention recommended a bill of rights which included the following: "That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state . . . ." Id. at 659.

The above demonstrates the dual and interrelated concerns that the militia consist of the entire citizenry and that the right of the entire people to have arms be recognized. The right to have arms for personal defense or sport needed no special mention because it was considered beyond the federal power (the reinvention of the interstate commerce clause in the New Deal was far in the future). Yet the language of the Second Amendment clearly protects the right for such purposes.

The Virginia convention also recommended an entirely different set of amendments concerning the structure of the government, including the provision: "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." Id. at 660. The State power over the militia was thus seen in clear contrast from the right of the people to have arms. While this State power would never be adopted as part of the federal Constitution, amici in this case argue as if this provision was adopted instead of what became the Second Amendment.

The New York convention recommended an arms guarantee almost identical to that of Virginia, and proposed a militia provision in a separate list of amendments. 1 Elliot 327-28, 331. The North Carolina convention copied the Virginia recommendations verbatim, including the arms guarantee in the bill of rights and, in a separate body of amendments, the State militia power. 4 Elliot 244-45.

The great compromise was now reached: the Constitution would be ratified and amendments would be considered in the first Congress. In 1789, Rep. James Madison outlined a speech proposing the bill of rights, explaining: "They [the proposed amendments] relate first to private rights--fallacy on both sides--espec[iall]y as to English Decl[aratio]n. of Rights--1. mere act of parl[iamen]t. 2. no freedom of press . . . --arms to protest[an]ts." 12 Madison Papers 193-94 (Rutland ed. 1979). The English Declaration provided: "That the Subjects which are Protestants, may have Arms for their Defence suitable to their Condition, and as are allowed by Law." 1 W. & M., Sess. 2, c.2 (1689). Madison's thought was that possession of arms was a "private (i.e., individual) right" which should extend to the entire people, not just Protestants, and that this right should not be capable of being taken away by a "mere act" of the legislature.

On June 8, 1789, in the House of Representatives, Madison proposed a bill of rights. It included the following: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." 4 Documentary History of the First Federal Congress 10 (Bickford & Veit eds. 1986). This has three parts: the guarantee of a substantive right of the people to keep and to bear arms, a philosophical declaration about the militia in a "free country," and a prohibition on personal conscription of those opposed to bearing arms on religious grounds.⁽⁶⁾ Senator William Grayson wrote that Madison's amendments "altogether respected personal liberty." 3 Patrick Henry 391 (1951).

Linguistically, the term "bear arms" was not limited to militia service. Madison had sponsored a bill in the Virginia legislature under which a person who hunted deer illegally could not "bear a gun out of his inclosed ground, unless whilst performing military duty . . . ." 2 Jefferson, Papers 443-44 (Boyd ed. 1951). Thus, one may "bear" arms while not "performing military duty." Noah Webster, a prominent federalist, defined "bear" as "to carry" or "to wear . . . as, to bear a sword, a badge, a name; to bear arms in a coat." Webster, An American Dictionary of the English Language (1828). "To bear arms in a coat" typically meant to carry a pistol in a coat for self defense.

Ten days after introduction of the bill of rights, Tench Coxe, a well known Federalist, explained what became the Second Amendment as follows: "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." Federal Gazette, June 18, 1789, at 2. Madison endorsed Coxe's analysis, writing him that ratification of the amendments "will however be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen." 12 Madison Papers 239-40, 257 (1978). Coxe's explanation was widely reprinted without contradiction.⁽⁷⁾ E.g., New York Packet, June 23, 1789, at 2; Massachusetts Centinel, July 4, 1789, at 1.

Samuel Nasson, who had served in the Massachusetts ratification convention, wrote Rep. George Thatcher about the amendments:

A Bill of rights well secured that we the people may know how far we may Proceed in Every Department. Then there will be no Dispute Between the people and rulers in that may be secured the right to keep arms for Common and Extraordinary Occasions such as to secure ourselves against the wild Beast and also to amuse us by fowling and for our Defence against a Common Enemy. You know to learn the Use of arms is all that can Save us from a foreign foe that may attempt to subdue us, for if we keep up the Use of arms and become well acquainted with them, we Shall always be able to look them in the face that arise up against us.

Creating the Bill of Rights 260-61 (H. Veit ed. 1991). No surviving writing of the period disputes the assumption that the right to keep arms was guaranteed for all persons (other than criminals) and for all lawful purposes.

Rep. Roger Sherman drafted amendments which declared that "the militia shall be under the government of the laws of the respective states, when not in the actual service of the United States," and included an anti-conscription clause. The Complete Bill of Rights 169-70 (Cogan ed. 1997). Individual arms possession was not mentioned as a right in the Sherman draft, but it would be a mistake to infer that he did not deem the right fundamental. In later debate he "conceived it to be the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded." 14 Documentary History of the First Federal Congress 93 (1995). In any event, contrary to the wishful thinking of amici, Congress proposed the Second Amendment, not Sherman's proposal which sought to guarantee State power over the militia.

On July 28, 1789, a House select committee reported Madison's proposals as amended by the committee. The arms guarantee was reworded: "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms." 4 Documentary History of the First Federal Congress 28 (1986). This switched the positions of the militia declaration and the arms guarantee, inserted the common definition of the militia as "composed of the body of the people," and changed "free country" to "free state" (which referred to the body politic, not necessarily to a state government).⁽⁸⁾

Rep. William L. Smith wrote that "there appears to be a disposition in our house to agree to some [amendments], which will more effectually secure private rights, without affecting the structure of the Gov[ernmen]t." Creating the Bill of Rights at 272-73. One writer noted that the committee version reflected "every one of the intended alterations" proposed by Samuel Adams in the Massachusetts convention, including his proposal "that the said constitution be never construed to authorize congress . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms . . . ." Independent Gazetteer, Aug. 20, 1789, at 2.

In August, the House debated what became the Second Amendment. The sparse debates reflect the concern that an armed populace as militia contributes to a free state by reducing the need for a standing army, and the objection that Congress might rely on the conscientious objector clause as a ruse to prevent persons Congress claimed to be religiously scrupulous from bearing arms in the militia. Elbridge Gerry stated that "this declaration of rights . . . is intended to secure the people against the mal-administration of the Government," but the objector clause "would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms." 1 Annals of Congress 749-50 (1834).

Rep. Thomas Scott objected that the exemption for religiously scrupulous persons would mean that "a militia can never be depended upon. This would lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, and in this case recourse must be had to a standing army." Id. at 766-67. The right to have arms was supportive of a duty to serve in a well regulated militia, which the exemption would undermine.

The Senate considered the amendments in September. It trimmed the guarantee to read: "A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed." Journal of the First Session of the Senate 71 (1820). It rejected a proposal to add "for the common defence" after "bear arms," reflecting that the right could be exercised for all lawful purposes. Finally, the Senate recharacterized the militia from being "the best security of a free state" to being "necessary to the security of a free state." The Senate then passed its final version, id. at 77, to which the House assented, and this version would be ratified by the States and become the Second Amendment.

Separately considering amendments to change the structure of the government, the Senate rejected the Virginia-North Carolina convention proposal (see supra) "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 . . . ." Id. at 251. This demonstrates that the "right" of "the people" to keep and bear arms, which the Senate approved, was not the same as the "power" of the "state" to arm and provide for militias, which the Senate rejected. It is untenable to argue, as does the government here, that the rejected provision embodies the true meaning of the provision that prevailed.

The evidence is overwhelming that the Second Amendment was intended to guarantee individual rights. For a comprehensive study of the framers' intent, see S. Halbrook, "The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment," 26 Valparasio University Law Review 131 (Fall 1991). If anyone in the period of 1787-1791 thought the Second Amendment guaranteed a "collective" State power to maintain a select militia or a "right" belonging only to militiamen when in actual service, and not an individual right of all "the people," it remains a closely-guarded secret. No known writing from that period asserts such a proposition.

The Second Amendment was viewed as protecting a personal right to keep arms in the antebellum commentaries and in the period of Reconstruction, which instituted great constitutional developments. The following sets forth a sampling of material from these periods.

St. George Tucker, the first major commentator on the Bill of Rights, explained the Second Amendment as follows: "The right of self-defense is the first law of nature . . . . Wherever . . . the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction." 1 Tucker, Blackstone's Commentaries (Appendix) 300 (1803).⁽⁹⁾

Justice Joseph Story declared: "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against usurpation and arbitrary power of the rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them." 2 J. Story, Commentaries on the Constitution 646 (5th ed. 1891). Story also wrote: "One of the ordinary modes, by which tyrants accomplish their purpose without resistance is, by disarming the people, and making it an offense to keep arms . . . ." J. Story, A Familiar Exposition of the Constitution of the United States 264 (1893). Unlike amici here, Justice Story obviously believed that the Second Amendment prohibited "disarming the people," not just the state militia, and prohibited "making it an offense to keep arms."

Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) held that African Americans were not citizens, for if they were, they would have the rights to "full liberty of speech" and "to keep and carry arms wherever they went." The Fourteenth Amendment would abrogate this decision. Senator Jacob Howard, introducing the Fourteenth Amendment in 1866, explained that its purpose was to protect "personal rights" such as "the right to keep and bear arms." CONG. GLOBE, 39th Cong., 1st Sess., 2765 (May 23, 1866).

Senator Charles Sumner presented a petition from a convention of freed blacks of South Carolina urging Congress to take action to protect their lives, liberty, and personal rights. In addition to suffrage, "They ask also that they should have the constitutional protection in keeping arms, in holding public assemblies, and in complete liberty of speech and of the press." CONG. GLOBE, 39th Cong., 1st Sess. 337 (Jan. 22, 1866).

Congress recognized in the Freedmen's Bureau Act, passed by over two-thirds of the same Congress which proposed the Fourteenth Amendment, the right to "full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and . . . estate, real and personal, including the constitutional right to bear arms." 14 Stat. 176-77 (1866). This recalls Samuel Adams' appeal in 1768 (quoted above) to Blackstone's concepts of "personal liberty" and "personal security" in support of "the right of having and using arms for self-preservation and defense." Adams, supra, part II. The Act and the constitutional amendment were intended to nullify the Southern black codes, under which state militias raided freedmen cabins to seize firearms. See Halbrook, "Personal Security, Personal Liberty, and 'the Constitutional Right to Bear Arms': Visions of the Framers of the Fourteenth Amendment," 5 Seton Hall Constitutional Law Journal 341 (Spring 1995).

Members of the Reconstruction Congress would have been aghast at the argument that the Second Amendment protected State militias and not private individuals. The Congress abolished the Southern state militias for two years because, according to Senator Henry Wilson, the state militias "go up and down the country taking arms away from men who own arms, and committing outrages of various kinds." CONG. GLOBE, 39th Cong., 2d Sess., 1849 (Feb. 19, 1867). When the Ku Klux Klan took the place of the militias, freedmen and Republicans in the South resisted this new terrorism with arms. On this era, see S. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, supra. For examples of resistance to Klan attacks, see id. at 126-28.

In sum, the framers of both the Second and Fourteenth Amendments intended to protect the individual right to keep arms. The law at issue violates this right.

The Court should affirm the judgment of the district court.

Respectfully submitted,

STEPHEN P. HALBROOK

10560 Main Street, Suite 404

Fairfax, Virginia 22030

(703) 352-7276

Attorney for Amicus Curiae Texas Justice Foundation

I hereby certify that two paper copies and one computer readable disk copy of this brief was mailed, first class postage prepaid, to Paul E. Coggins, United States Attorney, 1205 Texas Ave., 7th Floor, Lubbock, TX 79401 and to Timothy Crooks, Asst. Federal Public Defender & Appellate Chief, 600 Texas St., Suite 100, Fort Worth, TX 76102-4612, this day of December, 1999.

Stephen P. Halbrook

Pursuant to 5th Cir. R. 32.2 and .3, the undersigned certifies this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7).

1. Exclusive of the exempted portions in 5th Cir. R. 32.2, the brief contains 6976 words.

2. The brief has been prepared in proportionally spaced typeface using WordPerfect 8.0 in Times New Roman, size 14 point, except that footnotes are in 12 point.

The undersigned understands a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Fed. R. App. P. 32(a)(7), may result in the court's striking the brief and imposing sanctions against the person signing the brief.

Stephen P. Halbrook

1. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 (Westport, Conn.: Praeger Publishers, 1998); That Every Man Be Armed: The Evolution of a Constitutional Right (Albuquerque: University of New Mexico Press, 1984, reprinted Oakland, Ca.: Independent Institute, 1994); A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees (Westport, Conn.: Greenwood Press, 1989).

2. See Art. I, � 1 ("all legislative Powers herein granted shall be vested in a Congress of the United States"); Art. I, � 3 ("the Senate shall have the sole Power to try all Impeachments"); Art. II, � 2 (the President "shall have Power" to grant pardons, to make treaties, and to fill up vacancies).

3. Madison's original proposals for a bill of rights included provisions other than the Second Amendment with explanatory clauses. It declared that a free press, "as one of the great bulwarks of liberty," must be inviolable, and that "the trial by jury as one of the best securities to the rights of the people, ought to remain people, ought to remain inviolate." 4 Documentary History of the First Federal Congress 10-11 (1986). Had they passed in those forms, it would not be viable to argue that a free press is no longer a great bulwark of liberty or that jury trial is no longer one of the best securities of the rights of the people, and hence the substantive guarantee no longer exists. Nor is it reasonable to assert that a well regulated militia is no longer necessary to a free state�s security, and hence that the people no longer have a right to arms.

4. Muscarello v. United States, 141 L.Ed.2d 111, 125 (1998) (Ginsberg, J., dissenting) notes:

Surely a most familiar meaning [of the term "carry" a firearm] is, as the Constitution's Second Amendment ("keep and bear Arms") (emphasis added) and Black's Law Dictionary, at 214, indicate: "wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person."

5. Without citing a single reference to the framing of this provision or the British violations that prompted its passage, Commonwealth v. Davis, 343 N.E.2d 847, 848-49 (Mass. 1976) held that, under the older militia laws, "a law forbidding the keeping by individuals of arms that were used in the militia service" might have violated this provision, but such a law would no longer violate the guarantee because the militia "is now equipped and supported by public funds." This does not square with the constitutional "right" of "the people," without any reference to the militia, to "keep" arms.

6. Quakers were opposed to bearing arms for military purposes or for self defense. J. Richmond, "Quaker Customs & Beliefs," http://www.rootsweb.com/~quakers/quakinfo.htm. See J. Selsam, The Pennsylvania Constitution of 1776 (1936), 207 n. 6 (Quaker disapproved of wearing sword for protection).

7. Coxe would play an instrumental role in the first four administrations of the early republic, including as head of federal militia procurement. See Halbrook & Kopel, "Tench Coxe and the Right to Keep and Bear Arms, 1787-1823," 7 William & Mary Bill of Rights Journal, Issue 2, 347 (Feb. 1999).

8. Noah Webster defined "free" in part as "not subject to the arbitrary will of a sovereign or lord; as a free state, nation or people." The term "state" means "a political society, or body politic." "'State' has sometimes more immediate reference to the government, sometimes to the people or community." Webster, An American Dictionary, supra.

9. On the national prominence of Tucker, see D. Kopel, "The Second Amendment in the Nineteenth Century," B.Y.U.L. Rev., No. 4, 1359, 1370-79 (1998).