NO. 99-10331 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant, v. TIMOTHY JOE EMERSON, Defendant-Appellee. ON APPEAL FROM TEH JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS SAN ANGELO DIVISION BRIEF OF AMICUS CURIAE GUN OWNERS FOUNDATION IN SUPPORT OF DEFENDANT-APPELLEE TIMOTHY JOE EMERSON AND FOR AFFIRMANCE TABLE OF CONTENTS Page Table of Contents ................................... i Table of Cases, Statutes and Other Authorities ......... ii Interest of the Amicus Curiae ......................... 1 Statement of the Issue Presented ....................... 1 Statement of the Case ....................................... 1 Facts .................................................... 2 Summary of Argument ........................................ 2 Argument .................................................... 3 Conclusion ................................................... 11 Appendix: Second Amendment Resources List .......... 12 Certificate of Service ................................... 13 Certificate of Compliance .................................... 14 TABLE OF CASES, STATUTES AND OTHER AUTHORITIES Cases: Page Minneapolis Star v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983) ... 10 Printz v. United States, 117 S.Ct. 2365 (1997) .... 1, 9 Scott v. Sandford, 60 U.S. (19 Howard) 398 (1857) ... 9 United States v. Bryan, 118 S.Ct. 1939 (1998) ....... 1 United States v. Emerson, 46 F.Supp.2d 598 (W.D. Tex. 1999) ............................. 2 United States v. Gomez, 81 F.3d 846, superseded, 93 F.3d 770 (9th Cir. 1996) ....................... 10 United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993) ..... 4 United States v. Miller, 307 U.S. 174 (1939) .......... 3-4 United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) . 9 United States Constitution: Amendment II ....................................... passim Amendment V ........................................ 2 Statutes: Title 18, United States Code: Sec. 922(g)(8) .................................. passim Sec. 922(q) ......................................... 4 Internal Revenue Code of 1986 (26 U.S.C.): Sec. 501(c)(3) ...................................... 1 Miscellaneous: Federal Rules of Appellate Procedure: Rule 29(a) ...................................... 1 Akhil Reed Amar, "Second Thoughts: What the Right to Bear Arms Really Means," The New Republic, p. 242 (July 12, 1999) ................ 6 --- "The Bill of Rights and the Fourteenth Amendment," 101 Yale Law Journal 1131-1284 (April 1992) ............................... 6 --- "The Bill of Rights as a Constitution," 100 Yale Law Journal 1131 (1990) .................... 6 Black's Law Dictionary (West Pub. Co.; St. Paul, Minn; 5th ed. 1979) ........................ 10 Edward S. Corwin, The Constitution of the United States of America: Analysis and Interpretation (GPO; Washington, D.C.; 1952); (1973 rev.) ............................... 3 Raymond J. Cottrol, (ed.), Gun Control and the Constitution: Sources and Explorations on the Second Amendment, 3 vols. (Garland Publishing, Inc.; New York, N.Y.; 1992) .......... 6, 12 --- Id. in single paperback vol. (Garland Publishing, Inc.; New York, N.Y.; 1994) ......... 6, 12 --- (with Raymond T. Diamond), "The Fifth Auxiliary Right," 104 Yale Law Journal 995-1026 (1995) ................................... 6 --- "'Never Intended to be Applied to the White Population': Firearms Regulation and Racial Disparity -- The Redeemed South's Legacy to a National Jurisprudence," 70 Chicago-Kent Law Review 1307-1335 (1995) ........... 6 --- "Public Safety and the Right to Bear Arms," in D. Bodenhamer and J. Ely, After 200 Years: The Bill of Rights in Modern America (Indiana Univ. Press; Bloomington, Ind.; 1993) ................ 6 --- "The Second Amendment: Toward an Afro- Americanist Reconsideration," 80 Georgetown Law Journal 309-361 (1991) ....................... 6 Brannon P. Denning, "Palladium of Liberty? Causes and Consequences of the Federalization of State Militias in the Twentieth Century," 21 Oklahoma City Univ. Law Review 191-245 (1996) ................. 7 --- "Professional Discourse, the Second Amendment and the 'Talking Head Constitutionalism' Counterrevolution: A Review Essay," 21 Southern Illinois Univ. Law Journal 227-253 (1997) .................. 7 --- "Can the Simple Cite Be Trusted? Lower Court Interpretations of United States v. Miller and the Second Amendment," 26 Cumberland Law Review 961-1004 (1996) .......... 7 --- (with Glenn Harlan Reynolds) "It Takes a Militia: A Communitarian Case for Compulsory Arms Bearing," 5 William & Mary Bill of Rights Journal 185-214 (1996) ..................... 7 Stephen P. Halbrook, Firearms Law Deskbook (Clark Boardman Callaghan; Deerfield, Ill.; 1995 and 1999 supp.) .............................. 7 --- A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees (Greenwood Press, Inc.; Westport, Conn.; 1989) ...................................... 7 --- That Every Man Be Armed: The Evolution of a Constitutional Right (Univ. of New Mexico Press/The Independent Institute; Oakland, Cal.; 1984); reprinted by The Independent Institute (1991) ........................ 7 --- "Congress Interprets the Second Amendment: Declarations by a Co-Equal Branch on the Individual Right to Keep and Bear Arms," 62/3 Tennessee Law Review 597-641 (Spring 1995) ........ 7 --- "Second-Class Citizenship and the Second Amendment in the District of Columbia," 5/2 George Mason Univ. Civil Rights Law Journal 105-178 (Summer 1995) ........................ 7 --- "Personal Security, Personal Liberty, and 'The Constitutional Right to Bear Arms': Visions of the Framers of the Fourteenth Amendment," 5/2 Constitutional Law Journal 341-434 (Seton Hall Law School; Spring 1995) ......................... 7 --- "The Right to Keep and Bear Arms under the Second and Fourteenth Amendments: The Framers' Intent and Supreme Court Jurisprudence," 5/1 Journal of Firearms & Public Policy 7-28 (1993) ..... 7 --- "Rationing Firearms Purchases and the Right to Keep Arms: Reflections on the Bill of Rights of Virginia, West Virginia, and the United States," 96 West Virginia Law Review 1-83 (1993) .......... 7 --- "The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment," 26/1 Valparaiso Univ. Law Review 131-207 (Fall 1991) ........................ 7 --- "The Right to Bear Arms in Texas: The Intent of the Framers of the Bill of Rights," 41 Baylor Law Review 629-688 (1989) ................ 7 --- "Encroachments of the Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment," 15 Univ. of Dayton Law Review 91-124 (Fall 1989) ....................... 7 --- "Firearms, the Fourth Amendment, and Air Carrier Security," 52/3 Journal of Air Law & Commerce 585-680 (Southern Methodist Univ. School of Law; 1987) .................. 7 --- "What the Framers Intended: A Linguistic Analysis of the Right to 'Bear Arms'," 49/1 Law & Contemporary Problems 151-162 (Winter 1986) ... 7 --- "The Right to Bear Arms in the First State Bills of Rights: Pennsylvania, North Carolina, Vermont, and Massachusetts," 10 Vermont Law Review 255-320 (1985) ............................... 7 --- "The Second Amendment as a Phenomenon of Classical Political Philosophy" in Don B. Kates, Jr., (ed.), Firearms and Violence (1984) ..... 7 --- "Tort Liability for the Manufacture, Sale and Ownership of Handguns," 6/2 Hamline Law Review 351-382 (1983) ..................... 7 --- "To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-1791," 10/13 Northern Kentucky Law Review 13-39 (1982); reprinted in 2 Journal on Firearms & Public Policy ................. 7 --- "The Jurisprudence of the Second and Fourteenth Amendments," 4 George Mason Law Review 1-69 (1981), reprinted in part in The Right to Keep and Bear Arms, Report of the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 97th Cong., 2d Sess., pp. 68-82 (February 1982); revised and reprinted in Cottrol, Gun Control, pp. 360-374 ............................ 7 --- (with David B. Kopel) "Tench Coxe and the Right to Keep and Bear Arms, 1787-1823," 7/2 William & Mary Bill of Rights Journal 347-399 (February 1999) ...................... 7 David T. Hardy, Origins and Development of the Second Amendment (Blacksmith Corp.; Chino Valley, Ariz.; 1986) .......................... 6 --- (with William S. Fields), "The Militia and the Constitution: A Legal History," 136 Military Law Review 1 (1992); "The Firearms Owners' Protection Act: A Historical and Legal Perspective," 17 Cumberland Law Review 585-682 (1987) ......................... 6 --- "The Second Amendment and the Historiography of the Bill of Rights," 4 Journal of Law & Policy 1-62 (1987) ........................... 6 --- "Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment," 9 Harvard Journal of Law & Public Policy 559-638 (1986) ...................................... 6 --- "Legal Restrictions of Firearms Ownership as an Answer to Violent Crime: What Was the Question?" 6 Hamline Law Review 391-408 (1983) ...... 6 --- "Historical Bases of the Right to Keep and Bear Arms," The Right to Keep and Bear Arms, Report of the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 97th Cong., 2d Sess., pp. 45-67 (February 1982) ........... 6 --- "Firearms Ownership and Regulation: Tackling an Old Problem with Renewed Vigor," 20 William & Mary Law Review 235-290 (1978) ............. 6 --- (with John Stompoly), "Of Arms and the Law," 51 Chicago-Kent Law Review 62-114 (1974) ........... 6 Page Don B. Kates, Jr., Guns, Murders, and the Constitution: A Realistic Assessment of Gun Control (Pacific Research Institute for Public Policy; San Francisco, Calif.; 1990) ...... 8 --- (ed.), Firearms and Violence: Issues of Public Policy (Ballinger; Cambridge, Mass.; 1984) .... 8 --- (ed.), Why Handgun Bans Can't Work (Second Amendment Foundation; Bellevue, Wash.; 1982) ........ 8 --- (ed.), Restricting Handguns: The Liberal Skeptics Speak Out (North River Press, Inc.; Croton-on-Hudson, N.Y.; 1979) ................. 8 --- (with Gary Kleck), The Great American Gun Debate: Essays on Firearms & Violence (Pacific Research Institute for Public Policy; San Francisco, Cal.; 1997) ............... 8 --- (with Randy E. Barnett), "Under Fire: The New Consensus on the Second Amendment," 45/4 Emory Law Journal 1139-1259 (Fall 1996) ...... 8 --- "On Genocide and Disarmament," 86 Journal of Criminal Law & Criminology 247 (1995) ......... 8 --- "Gun Control: Separating Reality from Symbolism," 20 Journal of Contemporary Law 353-379 (1994) ................................... 8 --- "The Second Amendment and the Ideology of Self-Protection," 9 Constitutional Commentary 87-104 (February 1992) ................... 8 --- "Bigotry, Symbolism and Ideology in the Battle over Gun Control," 1992 Public Interest Law Review 31-46 (1992) ............. 9 --- "The Value of Civilian Handgun Possession as a Deterrent to Crime or a Defense Against Crime," 18 American Journal of Criminal Law 113-167 (1991) ... 9 --- "Minimalist Interpretation of the Second Amendment" in E. Hickok (ed.), The Bill of Rights: Original Meaning and Current Understanding (Univ. of Virginia Press; Charlottesville, Va.; 1991) ...................... 9 Page --- "Policy Lessons from Recent Gun Control Research," 49 Law & Contemporary Problems 35-62 (1986) ........................... 9 --- (ed.), Symposium: Gun Control, 49/1 Law & Contemporary Problems 1-267 (Winter 1986); author, "The Second Amendment: A Dialogue," id. at 143-150 ................................... 9 --- "The Battle Over Gun Control," 84 Public Interest 42 (1986); reprinted in 3 Journal on Firearms & Public Policy .................... 9 --- "Handgun Banning in Light of the Prohibition Experience," in Don B. Kates, Jr. (ed.), Firearms and Violence, pp. 139-154 (1984) ........ 9 --- "Handgun Prohibition and the Original Meaning of the Second Amendment," 82 Michigan Law Review 203-273 (1983) ............. 9 --- (ed.), "Firearms and Firearms Regulation: Old Premises, New Research (A Symposium)," 5 Law & Policy Quarterly (1983) ...................... 9 --- "Some Remarks on the Prohibition of Handguns," 23 St. Louis Univ. Law Journal 12 (1978) .......... 9 --- "Reflections on the Relevancy of Gun Control," 13 Criminal Law Bulletin 119 (1977) ..... 9 --- (with John K. Lattimer and James R. Boen), "Problematic Arguments for Banning Handguns," in Don B. Kates, Jr., and Gary Kleck, The Great American Gun Debate: Essays on Firearms & Violence, pp. 31-49 (Pacific Research Institute for Public Policy; San Francisco, Cal.; 1997) ........ 9 --- (with John K. Lattimer and James R. Boen), "Sagecraft: Bias and Mendacity in The Public Health Literature on Gun Usage," in Don B. Kates, Jr., and Gary Kleck, The Great American Gun Debate: Essays on Firearms & Violence, pp. 125-147 ............................. 9 --- (with Henry E. Schaffer, John K. Latimer, George B. Murray and Edwin H. Cassem), "Guns and Public Health: Epidemic of Violence or Pandemic of Propaganda?" 62/3 Tennessee Law Review 513-596 (Spring 1995) ................ 9 Page --- (with Daniel D. Polsby), "Of Genocide and Disarmament," 86/1 Journal of Criminal Law & Criminology 247-256 (Fall 1995) ............... 9 Paul G. Kauper, Constitutional Law: Cases and Materials (Little, Brown & Co.; Boston, Mass.; 2d ed. 1960) .................... 3 Gary Kleck, Point Blank: Guns and Violence in America (Aldine de Gruyter; New York; 1991) ......... 7 --- (with Don B. Kates, Jr.), The Great American Gun Debate: Essays on Firearms & Violence (Pacific Research Institute for Public Policy; San Francisco, Cal.; 1997); and "Media Bias: Gun Control, Assault Weapons, Cop-Killer Bullets, the Goetz Case, and Other Alarms in the Night," id. at pp. 54-92; and "The Frequency of Defensive Gun Use," id. at pp. 152-191 and "Keeping, Carrying, and Shooting Guns for Self Protection," id. at pp. 223-268 ....................................... 7 --- "Guns and Violence: An Interpretive Review of the Field," 1/1 Social Pathologies 12-47 (January 1995) .......................... 8 --- "Crime Control Through the Private Use of Armed Force," 35/1 Social Problems 1-21 (February 1988) ........................... 8 --- "The Relationship Between Gun Ownership Levels and Rates of Violence in the United States," in Don B. Kates, Jr. (ed.), Firearms and Violence: Issues of Public Policy, pp. 99-132 (Ballinger; Cambridge, Mass.; 1984) ................................. 8 --- (with Marc Gertz), "Armed Resistance to Crime: The Prevalence and Nature of Self- Defense with a Gun," 86/1 Journal of Criminal Law & Criminology 150-187 (Fall 1995) .......... 8 --- (with E. Britt Patterson), "The Impact of Gun Control and Gun Ownership Levels on Violence Rates," 9 Journal of Quantitative Criminology 249-287 (1993) ..................... 8 Page --- (with David Bordua), "The Assumptions of Gun Control," in Don B. Kates (ed.) Firearms and Violence: Issues of Public Policy (Ballinger; Cambridge, Mass.; 1984), reprinted in Library of Congress, Congressional Research Service, Federal Regulation of Firearms: A Report Prepared for the Use of the Committee on the Judiciary, United States Senate, 97th Cong., 2d Sess. (Committee Print 1982) ............ 8 --- "The Factual Foundation for Certain Key Assumptions of Gun Control," 5 Law & Policy Quarterly 271-293 (1983) .................... 8 David B. Kopel, Guns: Who Should Have Them? (Prometheus Books; Buffalo, N.Y.; 1995) .......... 6 --- The Samurai, the Mountie, and the Cowboy (Prometheus Books; Buffalo, N.Y.; 1992) ......... 6 --- Gun Control in Great Britain: Saving Lives or Constricting Liberty (1992) ............... 6 --- (with Paul H. Blackman), No More Wacos: What's Wrong with Federal Law Enforcement and How to Fix It (Prometheus Books; Amherst, N.Y.; 1997) ............................. 6 --- "Comprehensive Bibliography of the Second Amendment in Law Reviews," 11 Journal on Firearms & Public Policy 5-45 (Fall 1999) ......... 6, 12 --- "The Second Amendment in the Nineteenth Century," 1998 Brigham Young Univ. Law Review 1359-1524 (1998) ............ 6 --- "Lethal Laws," 15 New York Law School Journal of International & Comparative Law 355-398 (1995) .............................. 6 --- "The Ideology of Gun Ownership and Gun Control in the United States," 18 Quarterly Journal of Ideology 3-34 (June 1995) ....... 6 --- "It Isn't About Duck Hunting: The British Origins of the Right to Arms," 93 Michigan Law Review 1333-1362 (1995) ........... 6 --- "Rational Basis Analysis of 'Assault Weapon' Prohibition," 20 Journal of Contemporary Law 381-417 (1994) ............... 6 Page --- "Peril or Protection? The Risks and Benefits of Handgun Prohibition," 12 St. Louis Univ. Public Law Review 285-359 (1993) ................................... 6 --- "Japanese Gun Control," 2 Asia Pacific Law Review 26-52 (1993) .................... 6 --- "Why Gun Waiting Periods Threaten Public Safety," 4/1 Journal on Firearms & Public Policy 1-72 (Summer 1992) ................ 7 --- "Canadian Gun Control: Should the United States Look North for a Solution to Its Firearms Problem?" 5 Temple International & Comparative Law Journal 1-50 (1991) ........................... 7 --- (with Christopher C. Little), "Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition," 56/2 Maryland Law Review 438-554 (1997) ................................ 7 --- (with Glenn Harlan Reynolds), "Taking Federalism Seriously: Lopez and the Partial- Birth Abortion Ban," 30/1 Connecticut Law Review 59-116 (Fall 1997) ......................... 7 --- (with Joseph Olson), "Preventing a Reign of Terror: Civil Liberties Implications of Terrorism Legislation," 21 Oklahoma City Univ. Law Review 247-347 (Summer/Fall 1996) ......... 7 --- (with Clayton E. Cramer and Scott G. Hattrup), "A Tale of Three Cities: The Right to Keep and Bear Arms in State Supreme Court Cases," 68 Temple Law Review 1177-1240 (1995); reprinted in 8 Journal on Firearms & Public Policy 109-203 (Fall 1996) ............................ 7 --- (with Paul H. Blackman), "Can Soldiers Be Peace Officers? The Waco Disaster and the Militarization of American Law Enforcement," 30 Akron Law Review 619-659 (1997) .... 7 --- (with Paul H. Blackman), "The Unwarranted Warrant: The Waco Search Warrant and the Decline of the Fourth Amendment," 18/1 Hamline Journal of Law & Policy 1-51 (Fall 1996) ..... 7 Page --- (with Richard E. Gardiner), "The Sullivan Principles: Protecting the Second Amendment from Civil Abuse," 19 Seton Hall Legislation Journal 737-775 (1995) ........................... 7 Sanford Levinson, "Is the Second Amendment Finally Becoming Recognized as Part of the Constitution? Voices from the Courts" 1998 Brigham Young Univ. Law Review 127 (1998) ...... 8 --- "Democratic Politics and Gun Control," 1 Reconstruction 137 (1992) ................ 8 --- "The Embarrassing Second Amendment," 99 Yale Law Journal 637-659 (December 1989); reprinted in Cottrol, Gun Control 137-159; reprinted in 3 Journal on Firearms & Public Policy ....................... 8 Nelson Lund, "The Past and Future of the Individual's Right to Arms," George Mason University School of Law Law and Economics Working Paper No. 95-11 (GMU; Arlington, Va.; 1995); published in 31/1 Georgia Law Review 1-76 (Fall 1996) ......... 6 -- "The Second Amendment, Political Liberty, and the Right to Self-Preservation," 39/1 Alabama Law Review 103-130 (1987) .................... 6 Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (Harvard Univ. Press; Cambridge, Mass.; 1994) .................. 4 --- Disarmed: The Loss of the Right to Bear Arms in Restoration England (The Mary Ingraham Bunting Institute of Radcliffe College; 1980) ...... 4 --- "Gun Control and the Constitution: Sources and Explorations of the Second Amendment," 62/3 Tennessee Law Review 813-821 (Spring 1995) ...... 5 --- "The Role of the Militia in the Development of the Englishman's Right to be Armed -- Clarifying the Legacy," 5/1 Journal on Firearms & Public Policy 139-151 (1993) ............. 5 --- Review, 54 George Washington Univ. Law Review 582 (1986) .................................. 5 Page --- "The Right of the People to Keep and Bear Arms: The Common Law Tradition," 10 Hastings Constitutional Law Quarterly 285-314 (Winter 1983); reprinted in Robert J. Cottrol (ed.), Gun Control and the Constitution: Sources and Explorations on the Second Amendment, pp. 227-256 (Garland Publishing, Inc.; New York, N.Y.; 1994) ........... 5 Andrew J. McClurg, "Lotts More Guns and Other Fallacies Infecting the Gun Control Debate," 11 Journal on Firearms & Public Policy 139 (Fall 1999) .................... 4 Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton Univ. Press; Princeton, N.J.; 1997) ........... 9-10 Laurence T. Tribe, "The Second Amendment and state sovereignty," 1 American Constitutional Law 894-903 (Foundation Press; New York, N.Y.; 3d ed. 2000) ............... 8 William van Alstyne, "The Second Amendment and the Personal Right to Arms," 43/6 Duke Law Journal 1236-1255 (April 1994) ............. 8 Eugene Volokh, et al., "The Second Amendment As Teaching Tool in Constitutional Law Classes," 48 Journal of Legal Education 591 (1998) ....................................4 Webster's New International Dictionary (G. & C. Merriam Co.; Springfield, Mass.; unabridged 2d ed. 1957) ....................... 10 INTEREST OF THE AMICUS CURIAE Gun Owners Foundation is an Internal Revenue Code Section 501(c)(3) organization incorporated under the laws of the Commonwealth of Virginia. Its purposes are to educate the public about the importance of the Second Amendment to the United States Constitution and to provide legal and other assistance for law-abiding individuals involved in firearms-related cases. GOF's more than 100,000 contributors are, by self-definition, strongly interested in the right to keep and bear arms and in opposing legislation and judicial interpretations which burden or impede that right. [footnote 1] All parties have consented to the filing of this brief in accordance with Rule 29(a) of the Federal Rules of Appellate Procedure. ISSUE PRESENTED Whether Section 922(g)(8) of Title 18, United States Code, is unconstitutional as violative of the Second Amendment to the United States Constitution. STATEMENT OF THE CASE This is an appeal from a dismissal of an indictment charging the defendant with a violation of Section 922(g)(8) of Title 18, United States Code, by possessing a firearm while under a routine restraining order issued during the course of a Texas divorce proceeding between him and his former wife. The district court dismissed the indictment on the grounds that the statute was unconstitutional under both the Second and Fifth [footnote 2] Amendments to the United States Constitution. The government has appealed. The opinion of the district court is reported at 46 F.Supp.2d 598. FACTS The facts are set forth in the submissions of the parties. The critical fact of the case in the opinion of this amicus is that Section 922(g)(8) permits a conviction, as here, where the defendant is subject to a generic restraining order which may be issued even in the absence of any evidence or finding that he [footnote 3] poses a threat to the party protected by the order. 18 U.S.C. section 922(g)(8)(C)(ii). SUMMARY OF ARGUMENT It can no longer be seriously disputed that the Second Amendment to the United States Constitution codifies a fundamental -- many would say God-given -- individual right to keep and bear arms, independent of and unrelated to any power of the States to create and maintain a military force, and independent of and unrelated to any power of the national government to regulate commerce. That right is severely infringed when the mere passive possession of a firearm is criminalized by the issuance of a boiler-plate domestic relations restraining order not based upon any evidence or finding of a threat directed toward the person protected by the order. That infringement is unconstitutional and any prosecution thereunder is null and void. ARGUMENT This Court is presented with a historic opportunity. It could once be said of the Second Amendment to the United States Constitution that, like the comedian Rodney Dangerfield, it "don't get no respect." [footnote 4] For more than a century and a half the amendment received no meaningful judicial attention. For almost two centuries it received no scholarly attention. Even when the United States Supreme Court finally addressed the meaning of the amendment, in United States v. Miller, 307 U.S. 174 (1939), the Court rendered an opinion so opaque that inferior courts, practitioners and scholastics are still arguing about the holding of the case. Miller is perhaps a backhanded compliment to our adversary system of justice, consisting as it does of an ex parte decision where the defendants neither appeared nor argued and where there was no evidentiary or other record in the district court whose dismissal of the indictment as violating the Second Amendment was directly appealed to the Supreme Court. Pro-gun advocates urge that the case clearly recognizes a personal, individual constitutional right to keep and bear arms. Anti-gun advocates contend that it just as clearly holds the right to keep and bear arms to be only a collective right of the States in maintaining a militia. That it can be argued to stand for such diametrically opposed holdings suggests that it may not stand for very much at all: But when all is said and done, the only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact. For example Professor Eugene Volokh describes Miller as "deliciously and usefully ambiguous" in an article about using the Second Amendment as a teaching tool in constitutional law.[fn] This is probably the most accurate statement that can be made about the case. Andrew J. McClurg, "'Lotts' More Guns and Other Fallacies Infecting the Gun Control Debate," 11 J. Firearms & Pub. Pol. 139, 149-150 (Fall 1999), citing Eugene Volokh, et al., "The Second Amendment As Teaching Tool in Constitutional Law Classes," 48 J. Legal Educ. 591, 604 (1998). This Court is, in essence, writing on a clean slate. [footnote 5] It can no longer be contended that the Second Amendment gets no respect. In the past two decades the amendment has been the subject of intense historical and scholarly analysis. To assist the Court in its research of the burgeoning professional literature in this area and rather than waste our space in saying what others have said better we will attempt to list the most prominent scholars in the field, along with citations to their work. Principal among these scholars are Professor Joyce Lee Malcolm; [footnote 6] Dr. Stephen P. Halbrook; [footnote 7] Professor Robert J. Cottrol; [footnote 8] Mr. David T. Hardy; [footnote 9] Professor Akhil Reed Amar; [footnote 10] Professor Nelson Lund; [footnote 11] Mr. David B. Kopel; [footnote 12] and Mr. Brannon P. Denning. [footnote 13] The overwhelming conclusion of these analyses is that the amendment says what it means and means what it says. [footnote 14] What is most impressive about this near consensus of academic opinion is that many of the scholars are either self-identified "liberals" or unconnected with the pro-gun movement; indeed, in a tribute to intellectual honesty, a number of these authors identify themselves as favoring gun control. E.g., Professor Gary Kleck of the University of Florida, [footnote 15] Professor William van Alstyne of Duke, [footnote 16] Professor Laurence H. Tribe of Harvard, [footnote 17] Professor Sanford Levinson of the University of Texas, [footnote 18] and Mr. Don B. Kates, Jr., [footnote 19] of San Francisco. The result of this scholarly effort is to demonstrate conclusively that the Framers of the Constitution understood and intended the right to keep and bear arms to be a fundamental right of the individual citizen that had nothing to do with any "right" or power of the States. Moreover, the Supreme Court seems to have forecast this result. From as early as 1857 to as recently as 1990 the Court has recognized in dicta that the right to keep and bear arms is a personal and individual right of free citizens. See Scott v. Sandford, 60 U.S. (19 Howard) 398, 417, 450 (1857), and United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). See also the concurring opinion of Justice Thomas in Printz v. United States, 521 U.S. ___, 117 S.Ct. 2365, 2385-2386 (1997). As Justice Scalia has noted, "It would be strange to find in the midst of a catalog of the rights of individuals a provision securing to the states the right to maintain a designated 'Militia.'" Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 3, 42-43 (Princeton Univ. Press; Princeton, N.J.; 1997). The remaining question then is whether 18 U.S.C. section 922(g)(8) "infringes" this individual right. [footnote 20] Because of the paucity of Second Amendment jurisprudence there is no judicial precedent on the meaning of "shall not be infringed." [footnote 21] Black's Law Dictionary defines "infringement" as "[a] breaking into; a trespass or encroachment upon; a violation of a law, regulation, contract or right." [footnote 22] Webster's New International Dictionary defines "infringe" as "... to destroy; defeat; frustrate ... to commit a breach of; to violate; to neglect to fulfill or obey...." [footnote 23] Timothy Joe Emerson's personal, individual constitutional right to possess firearms was not just "infringed." At the instant the state court judge entered a domestic relations restraining order against him the right was destroyed, negated, nullified. Emerson was instantly transformed into a federal felon, based on no evidence and no judicial finding that he was a threat to his wife. Thus, whatever "infringed" means at its outer "fringes," this statute manifestly infringes his constitutional right to keep and bear arms. [footnote 24] CONCLUSION The decision below reflects a clear grasp of the new scholarship and follows it to its logical conclusion. For that reason the Court should declare Section 922(g)(8) of Title 18, United States Code, to be violative of the Second Amendment to the United States Constitution. The decision below should be affirmed. Respectfully submitted, GUN OWNERS FOUNDATION Amicus Curiae in Support of Defendant/Appellee Timothy Joe Emerson JAMES H. JEFFRIES, III 3019 Lake Forest Drive Greensboro, NC 27408 Telephone: (336) 282-6024 APPENDIX SECOND AMENDMENT RESOURCES LIST Internet Sources For a comprehensive Second Amendment law review bibliography see: http://www.saf.org/AllLawReviews.html Many of the law review articles described below may be found on the following Internet websites: http://www.2ndlawlib.org http://www.saf.org/journal.html http://i2i.org/crimjust.htm http://www.infinet.com/~bmueller/Library.html Many difficult to locate cases and other materials can also be found at: http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist /index.html Also see, Robert J. Cottrol (ed.), Gun Control and the Constitution: Sources and Explorations on the Second Amendment, 3 vols. (Garland Publishing, Inc.; New York, N.Y.; 1992); Id. in single paperback vol. (Garland Publishing, Inc.; New York, N.Y.; 1994). and David B. Kopel, "Bibliography of the Second Amendment in Law Reviews," 11 Journal on Firearms & Public Policy 5-45 (Fall 1999). CERTIFICATE OF SERVICE I hereby certify that service of the foregoing brief has been made by first class United States postage upon all parties this 20th day of December, 1999, by mailing two copies each to counsel for the parties, along with electronic versions in both ASCII and MS Word version 5.0 for DOS, as follows: William B. Mateja, Esquire Assistant United States Attorney 1205 Texas Avenue, 7th Floor Lubbock, Texas 79401 (Counsel for Plaintiff-Appellant) and Timothy W. Crooks, Esquire Assistant Federal Public Defender 600 Texas Street, Suite 100 Fort Worth, Texas 76102-4612 (Counsel for Defendant-Appellee) ___________________________ James H. Jeffries, III 3019 Lake Forest Drive Greensboro, NC 27408 Telephone: (336) 282-6024 Counsel for Amicus Curiae Gun Owners Foundation CERTIFICATE OF COMPLIANCE Pursuant to Fifth Circuit Rule 32.3 and Federal Rule of Appellate Procedure 32(a)(7)(B), undersigned counsel certifies that this brief complies with the type-volume limitations of Fifth Circuit Rules 32.2 and 29.3 and Federal Rule of Appellate Procedure 29(d). 1. Exclusive of the portions exempted by Fifth Circuit Rule 32.2 and Federal Rule of Appellate Procedure 32(a)(7)(B) (iii) the brief contains 1,541 words. 2. The brief has been prepared in proportionally spaced typeface using Microsoft Word Version 5.0 for DOS in CGTimes Roman, font size 14 point. 3. Undersigned counsel has provided electronic versions of the brief to the Court and to counsel for the parties. 4. Undersigned counsel understands that a material mis-representation in this certificate or circumvention of the type-volume limitations in Federal Rules of Appellate Procedure 32(a)(7)(B)(i) and 29(d) may result in the Court's striking the brief and imposing sanctions against the undersigned. ___________________________ James H. Jeffries, III 3019 Lake Forest Drive Greensboro, NC 27408 Telephone: (336) 282-6024 Counsel for Amicus Curiae Gun Owners Foundation FOOTNOTES 1. The Foundation, for example, was amicus curiae in support of the decision by the Supreme Court to declare those portions of the Brady Act properly before it unconstitutional. Printz v. United States, 117 S.Ct. 2365 (1997). See 1996 WL 468617. The Foundation also filed an amicus curiae brief in support of the petitioner in United States v. Bryan, 118 S.Ct. 1939 (1998). See 1998 WL 25519. 2. The district court also ruled that the statute offends the Fifth Amendment, an issue we do not brief for want of space. However, the amicus agrees with that ruling and urges that it be affirmed. 3. The language of the statute is gender neutral. However, it is a matter of common knowledge susceptible of judicial notice that close to, perhaps more, than 99% of all such orders are routinely issued against the male partner in these disputes. We would have a serious question about the legitimacy of a criminal statute whose effective target was 99% African American or 99% Catholic or Jewish, etc. However, that issue is not raised by this appeal. 4. Indeed, this Court has described it as "this orphan of the Bill of Rights." See note 6, infra. In the 1973 revision to Professor Edward S. Corwin's compilation, The Constitution of the United States of America: Analysis and Interpretation (GPO; Washington, D.C.; 1952), just one and a half of more than 2,000 pages is dedicated to the Second Amendment. In a standard 1960 casebook, Paul G. Kauper, Constitutional Law: Cases and Materials (Little, Brown & Co.; Boston, Mass.; 2d ed. 1960), no mention is made of the amendment. 5. The Court has previously noted, in United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993), aff'd, 514 U.S. 549 (1995), that there may be serious Second Amendment issues created by federal gun control enactments unanchored by any constitutional authority: "It is also conceivable that some applications of section 922(q) might raise Second Amendment concerns. Lopez does not raise the Second Amendment and thus we do not now consider it. Nevertheless, this orphan of the Bill of Rights may be something of a brooding omnipresence here. For an argument that the Second Amendment should be taken seriously, see Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989)." 2 F.3d 1342 at fn. 46. 6. Malcolm: To Keep and Bear Arms: The Origins of an Anglo-American Right (Harvard Univ. Press; Cambridge, Mass.; 1994); Disarmed: The Loss of the Right to Bear Arms in Restoration England (The Mary Ingraham Bunting Institute of Radcliffe College; 1980); "Gun Control and the Constitution: Sources and Explorations of the Second Amendment," 62/3 Tenn. L. Rev. 813-821 (Spring 1995); "The Role of the Militia in the Development of the Englishman's Right to be Armed -- Clarifying the Legacy," 5/1 J. Firearms & Pub. Pol. 139-151 (1993); Review, 54 Geo. Washington U. L. Rev. 582 (1986); "The Right of the People to Keep and Bear Arms: The Common Law Tradition," 10 Hastings Constit. L. Quart. 285-314 (Winter 1983); reprinted in Robert J. Cottrol (ed.), Gun Control and the Constitution: Sources and Explorations on the Second Amendment, pp. 227-256 (Garland Publishing, Inc.; New York, N.Y.; 1994), hereafter, "Cottrol, Gun Control"). 7. Halbrook: Firearms Law Deskbook (Clark Boardman Callaghan; Deerfield, Ill.; 1995 and 1999 supp.); A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees (Greenwood Press, Inc.; Westport, Conn.; 1989); That Every Man Be Armed: The Evolution of a Constitutional Right (Univ. of New Mexico Press/The Independent Institute; Oakland, Cal.; 1984); reprinted by The Independent Institute (1991); "Congress Interprets the Second Amendment: Declarations by a Co-Equal Branch on the Individual Right to Keep and Bear Arms," 62/3 Tenn. L. Rev. 597-641 (Spring 1995); "Second-Class Citizenship and the Second Amendment in the District of Columbia," 5/2 Geo. Mason Univ. Civ. Rights L. J. 105-178 (Summer 1995); "Personal Security, Personal Liberty, and 'The Constitutional Right to Bear Arms': Visions of the Framers of the Fourteenth Amendment," 5/2 Constit. L. J. 341-434 (Seton Hall Law School; Spring 1995); "The Right to Keep and Bear Arms under the Second and Fourteenth Amendments: The Framers' Intent and Supreme Court Jurisprudence," 5/1 J. Firearms & Pub. Pol. 7-28 (1993); "Rationing Firearms Purchases and the Right to Keep Arms: Reflections on the Bill of Rights of Virginia, West Virginia, and the United States," 96 W. Va. L. Rev. 1-83 (1993); "The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment," 26/1 Valparaiso U. L. Rev. 131-207 (Fall 1991); "The Right to Bear Arms in Texas: The Intent of the Framers of the Bill of Rights," 41 Baylor L. Rev. 629-688 (1989); "Encroachments of the Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment," 15 U. of Dayton L. Rev. 91-124 (Fall 1989); "Firearms, the Fourth Amendment, and Air Carrier Security," 52/3 J. of Air Law & Comm. 585-680 (Southern Methodist Univ. School of Law; 1987); "What the Framers Intended: A Linguistic Analysis of the Right to 'Bear Arms'," 49/1 Law & Contemp. Prob. 151-162 (Winter 1986); "The Right to Bear Arms in the First State Bills of Rights: Pennsylvania, North Carolina, Vermont, and Massachusetts," 10 Vt. L. Rev. 255-320 (1985); "The Second Amendment as a Phenomenon of Classical Political Philosophy" in Don B. Kates, Jr., (ed.), Firearms and Violence (1984); "Tort Liability for the Manufacture, Sale and Ownership of Handguns," 6/2 Hamline L. Rev. 351-382 (1983); "To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-1791," 10/13 No. Ky. L. Rev. 13-39 (1982); reprinted in 2 J. Firearms & Pub. Pol.; "The Jurisprudence of the Second and Fourteenth Amendments," 4 Geo. Mason L. Rev. 1-69 (1981), reprinted in part in The Right to Keep and Bear Arms, Report of the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 97th Cong., 2d Sess., pp. 68-82 (February 1982); revised and reprinted in Cottrol, Gun Control, pp. 360-374; (with David B. Kopel) "Tench Coxe and the Right to Keep and Bear Arms, 1787-1823," 7/2 W. & M. Bill of Rights J. 347-399 (February 1999). 8. Cottrol: (ed.), Gun Control and the Constitution: Sources and Explorations on the Second Amendment, 3 vols. (Garland Publishing, Inc.; New York, N.Y.; 1992); Id. in single paperback vol. (Garland Publishing, Inc.; New York, N.Y.; 1994); (with) Raymond T. Diamond, "The Fifth Auxiliary Right," 104 Yale L. J. 995-1026 (1995); "'Never Intended to be Applied to the White Population': Firearms Regulation and Racial Disparity -- The Redeemed South's Legacy to a National Jurisprudence," 70 Chi.-Kent L. Rev. 1307-1335 (1995); "Public Safety and the Right to Bear Arms," in D. Bodenhamer and J. Ely, After 200 Years: The Bill of Rights in Modern America (Indiana Univ. Press; Bloomington, Ind.; 1993); "The Second Amendment: Toward an Afro-Americanist Reconsideration," 80 Georgetown L. J. 309-361 (1991). 9. Hardy: Origins and Development of the Second Amendment (Blacksmith Corp.; Chino Valley, Ariz.; 1986); (with William S. Fields), "The Militia and the Constitution: A Legal History," 136 Mil. L. Rev. 1 (1992); "The Firearms Owners' Protection Act: A Historical and Legal Perspective," 17 Cumberland L. Rev. 585-682 (1987); "The Second Amendment and the Historiography of the Bill of Rights," 4 J. of L. & Pol. 1-62 (1987); "Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment," 9 Harvard J. of L. & Pub. Pol. 559-638 (1986); "Legal Restrictions of Firearms Ownership as an Answer to Violent Crime: What Was the Question?" 6 Hamline L. Rev. 391-408 (1983); "Historical Bases of the Right to Keep and Bear Arms," The Right to Keep and Bear Arms, Report of the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 97th Cong., 2d Sess., pp. 45-67 (February 1982); "Firearms Ownership and Regulation: Tackling an Old Problem with Renewed Vigor," 20 W. & M. L. Rev. 235-290 (1978); (with John Stompoly), "Of Arms and the Law," 51 Chi.-Kent L. Rev. 62-114 (1974). 10. Amar: "Second Thoughts: What the Right to Bear Arms Really Means," The New Republic, p. 242 (July 12, 1999); "The Bill of Rights and the Fourteenth Amendment," 101 Yale L. J. 1131-1284 (April 1992); "The Bill of Rights as a Constitution," 100 Yale L. J. 1131 (1990). 11. Lund: "The Past and Future of the Individual's Right to Arms," George Mason University School of Law Law and Economics Working Paper No. 95-11 (GMU; Arlington, Va.; 1995); published in 31/1 Ga. L. Rev. 1-76 (Fall 1996); "The Second Amendment, Political Liberty, and the Right to Self-Preservation," 39/1 Ala. L. Rev. 103-130 (1987). 12. Kopel: Guns: Who Should Have Them? (Prometheus Books; Buffalo, N.Y.; 1995); The Samurai, the Mountie, and the Cowboy (Prometheus Books; Buffalo, N.Y.; 1992); Gun Control in Great Britain: Saving Lives or Constricting Liberty (1992); (with Paul H. Blackman), No More Wacos: What's Wrong with Federal Law Enforcement and How to Fix It (Prometheus Books; Amherst, N.Y.; 1997); "Comprehensive Bibliography of the Second Amendment in Law Reviews," 11 J. Firearms & Pub. Pol. 5-45 (Fall 1999); "The Second Amendment in the Nineteenth Century," 1998 Brig. Young U. L. Rev. 1359-1524 (1998); "Lethal Laws," 15 N.Y. L. Sch. J. of Int'l & Comp. L. 355-398 (1995); "The Ideology of Gun Ownership and Gun Control in the United States," 18 Quart. J. of Ideol. 3-34 (June 1995); "It Isn't About Duck Hunting: The British Origins of the Right to Arms," 93 Mich. L. Rev. 1333-1362 (1995); "Rational Basis Analysis of 'Assault Weapon' Prohibition," 20 J. of Contemp. L. 381-417 (1994); "Peril or Protection? The Risks and Benefits of Handgun Prohibition," 12 St. Louis U. Pub. L. Rev. 285-359 (1993); "Japanese Gun Control," 2 Asia Pac. L. Rev. 26-52 (1993); "Why Gun Waiting Periods Threaten Public Safety," 4/1 J. Firearms & Pub. Pol. 1-72 (Summer 1992); "Canadian Gun Control: Should the United States Look North for a Solution to Its Firearms Problem?" 5 Temple Int'l & Comp. L. J. 1-50 (1991); (with Christopher C. Little), "Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition," 56/2 Md. L. Rev. 438-554 (1997); (with Glenn Harlan Reynolds), "Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban," 30/1 Conn. L. Rev. 59-116 (Fall 1997); (with Joseph Olson), "Preventing a Reign of Terror: Civil Liberties Implications of Terrorism Legislation," 21 Okla. City U. L. Rev. 247-347 (Summer/Fall 1996); (with Clayton E. Cramer and Scott G. Hattrup), "A Tale of Three Cities: The Right to Keep and Bear Arms in State Supreme Court Cases," 68 Temple L. Rev. 1177-1240 (1995); reprinted in 8 J. Firearms & Pub. Pol. 109-203 (Fall 1996); (with Paul H. Blackman), "Can Soldiers Be Peace Officers? The Waco Disaster and the Militarization of American Law Enforcement," 30 Akron L. Rev. 619-659 (1997); (with Paul H. Blackman), "The Unwarranted Warrant: The Waco Search Warrant and the Decline of the Fourth Amendment," 18/1 Hamline J. of L. & Pol. 1-51 (Fall 1996); (with Richard E. Gardiner), "The Sullivan Principles: Protecting the Second Amendment from Civil Abuse," 19 Seton Hall Legis. J. 737-775 (1995). 13. Denning: "Palladium of Liberty? Causes and Consequences of the Federalization of State Militias in the Twentieth Century," 21 Okla. City U. L. R. 191-245 (1996); "Professional Discourse, the Second Amendment and the 'Talking Head Constitutionalism' Counterrevolution: A Review Essay," 21 So. Ill. U. L. J. 227-253 (1997); "Can the Simple Cite Be Trusted? Lower Court Interpretations of United States v. Miller and the Second Amendment," 26 Cumberland L. Rev. 961-1004 (1996); (with Glenn Harlan Reynolds) "It Takes a Militia: A Communitarian Case for Compulsory Arms Bearing," 5 W. & M. Bill of Rights J. 185-214 (1996). 14. In the words of the bumper sticker debate which surrounds this controversial topic, one can now reasonably ask the anti-gun partisans, "What part of 'shall not be infringed' don't you understand?" 15. See, Point Blank: Guns and Violence in America (Aldine de Gruyter; New York; 1991); The Great American Gun Debate: Essays on Firearms & Violence (Pacific Research Institute for Public Policy; San Francisco, Cal.; 1997) (with Don B. Kates, Jr.); "Media Bias: Gun Control, Assault Weapons, Cop-Killer Bullets, the Goetz Case, and Other Alarms in the Night," in Don B. Kates, Jr., and Gary Kleck, The Great American Gun Debate: Essays on Firearms & Violence, pp. 54-92 (Pacific Research Institute for Public Policy; San Francisco, Cal.; 1997); "The Frequency of Defensive Gun Use," pp. 152-191 and "Keeping, Carrying, and Shooting Guns for Self Protection," pp. 194-222, and "The Nature of Defensive Gun Use and the Deterrence and Displacement of Crime," in Don B. Kates, Jr., and Gary Kleck, The Great American Gun Debate: Essays on Firearms & Violence, pp. 223-268 (Pacific Research Institute for Public Policy; San Francisco, Cal.; 1997); "Guns and Violence: An Interpretive Review of the Field," 1/1 Soc. Path. 12-47 (January 1995); "Crime Control Through the Private Use of Armed Force," 35/1 Soc. Prob. 1-21 (February 1988); "The Relationship Between Gun Ownership Levels and Rates of Violence in the United States," in Don B. Kates, Jr. (ed.), Firearms and Violence: Issues of Public Policy, pp. 99-132 (Ballinger; Cambridge, Mass.; 1984); (with Marc Gertz), "Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun," 86/1 J. of Crim. L. & Crim. 150-187 (Fall 1995); (with E. Britt Patterson), "The Impact of Gun Control and Gun Ownership Levels on Violence Rates," 9 J. of Quantit. Crim. 249-287 (1993); "The Relationship between Gun Ownership Levels and Rates of Violence in the United States," and (with David Bordua), "The Assumptions of Gun Control," in Don B. Kates (ed.) Firearms and Violence: Issues of Public Policy (Ballinger; Cambridge, Mass.; 1984), reprinted in Library of Congress, Congressional Research Service, Federal Regulation of Firearms: A Report Prepared for the Use of the Committee on the Judiciary, United States Senate, 97th Cong., 2d Sess. (Committee Print 1982); "The Factual Foundation for Certain Key Assumptions of Gun Control," 5 L. & Pol. Quart. 271-293 (1983). 16. See, "The Second Amendment and the Personal Right to Arms," 43/6 Duke L. J. 1236-1255 (April 1994). 17. See, "The Second Amendment and state sovereignty," 1 American Constitutional Law 894-903 (Foundation Press; New York, N.Y.; 3d ed. 2000). 18. See, "Is the Second Amendment Finally Becoming Recognized as Part of the Constitution? Voices from the Courts" 1998 Brig. Young U. L. Rev. 127 (1998); "Democratic Politics and Gun Control," 1 Reconstruction 137 (1992); "The Embarrassing Second Amendment," 99 Yale L. J. 637-659 (December 1989); reprinted in Cottrol, Gun Control 137-159; reprinted in 3 J. Firearms & Pub. Pol. 19. E.g., Guns, Murders, and the Constitution: A Realistic Assessment of Gun Control (Pacific Research Institute for Public Policy; San Francisco, Calif.; 1990); (ed.), Firearms and Violence: Issues of Public Policy (Ballinger; Cambridge, Mass.; 1984); (ed.), Why Handgun Bans Can't Work (Second Amendment Foundation; Bellevue, Wash.; 1982); (ed.), Restricting Handguns: The Liberal Skeptics Speak Out (North River Press, Inc.; Croton-on-Hudson, N.Y.; 1979); (with Gary Kleck), The Great American Gun Debate: Essays on Firearms & Violence (Pacific Research Institute for Public Policy; San Francisco, Cal.; 1997); (with Randy E. Barnett), "Under Fire: The New Consensus on the Second Amendment," 45/4 Emory L. J. 1139-1259 (Fall 1996); "On Genocide and Disarmament," 86 J. of Crim. L. & Criminology 247 (1995); "Gun Control: Separating Reality from Symbolism," 20 J. of Contemp. L. 353-379 (1994); "The Second Amendment and the Ideology of Self-Protection," 9 Constit. Comment. 87-104 (February 1992); "Bigotry, Symbolism and Ideology in the Battle over Gun Control," 1992 Pub. Int'l L. Rev. 31-46 (1992); "The Value of Civilian Handgun Possession as a Deterrent to Crime or a Defense Against Crime," 18 Amer. J. of Crim. L. 113-167 (1991); "Minimalist Interpretation of the Second Amendment" in E. Hickok (ed.), The Bill of Rights: Original Meaning and Current Understanding (Univ. of Virginia Press; Charlottesville, Va.; 1991); "Policy Lessons from Recent Gun Control Research," 49 L. & Contemp. Prob. 35-62 (1986); (ed.), Symposium: Gun Control, 49/1 L. & Contemp. Prob. 1-267 (Winter 1986); author, "The Second Amendment: A Dialogue," id. at 143-150; "The Battle Over Gun Control," 84 Pub. Int. 42 (1986); reprinted in 3 J. Firearms & Pub. Pol.; "Handgun Banning in Light of the Prohibition Experience," in Don B. Kates, Jr. (ed.), Firearms and Violence, pp. 139-154 (1984); "Handgun Prohibition and the Original Meaning of the Second Amendment," 82 Mich. L. Rev. 203-273 (1983); (ed.), "Firearms and Firearms Regulation: Old Premises, New Research (A Symposium)," 5 L. & Pol. Quart. (1983); "Some Remarks on the Prohibition of Handguns," 23 St. Louis U. L. J. 12 (1978); "Reflections on the Relevancy of Gun Control," 13 Crim. L. Bull. 119 (1977); (with John K. Lattimer and James R. Boen), "Problematic Arguments for Banning Handguns," in Don B. Kates, Jr., and Gary Kleck, The Great American Gun Debate: Essays on Firearms & Violence, pp. 31-49 (Pacific Research Institute for Public Policy; San Francisco, Cal.; 1997); (with John K. Lattimer and James R. Boen), "Sagecraft: Bias and Mendacity in The Public Health Literature on Gun Usage," in Don B. Kates, Jr., and Gary Kleck, The Great American Gun Debate: Essays on Firearms & Violence, pp. 125-147; (with Henry E. Schaffer, John K. Latimer, George B. Murray and Edwin H. Cassem), "Guns and Public Health: Epidemic of Violence or Pandemic of Propaganda?" 62/3 Tenn. L. Rev. 513-596 (Spring 1995); (with Daniel D. Polsby), "Of Genocide and Disarmament," 86/1 J. of Crim. L. & Criminology 247-256 (Fall 1995). 20. "[W]hen we do have evidence that a particular law would have offended the Framers, we have not hesitated to invalidate it on that ground alone." Minneapolis Star v. Minnesota Commissioner of Revenue, 460 U.S. 575, 583-584, fn. 6 (1983). 21. But see the opinion of Judge Kozinski in United States v. Gomez, 81 F.3d 846, superseded, 93. F.3d 770 (9th Cir. 1996), that the prohibition against possession of a firearm by a convicted felon infringed his Second Amendment right under the circumstances present there. 22. p. 702 (West Publishing Co.; St. Paul, Minn.; 5th ed. 1979). 23. p. 1277 (G. & C. Merriam Co.; Springfield, Mass.; unabridged 2d ed. 1957). 24. Given this conclusion, it is also likely that the state court restraining order was itself unconstitutional, interacting as it did with the federal statute to deprive Emerson of his constitutional right. That issue is not presented by this appeal.