What is a well regulated militia anyway? - texindbar.org

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Vol. 21, No. 10; March 11, 2013

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Texas Independent Bar Association Austin, Texas 78767

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Copyright ? 2013 Texas Independent Bar Association and the following Commentators

Alan Curry Helena Faulkner Jeffrey S. Garon Lee Haidusek

John G. Jasuta Charles Mallin Gail Kikawa McConnell Angela J. Moore

Doug O'Brien Greg Sherwood David A. Schulman

Kevin P. Yeary

Clicking a hyperlink (such as a judge's name) will load the linked opinion or document in your web browser.

It is TIBA's policy that commentators do not summarize or comment on cases in which they were involved.

Volume 21, Number 10 ~ Monday, March 11, 2013 (No. 951)

Featured Article

What is a "Well Regulated Militia," Anyway?

? 2013 David A. Schulman and Texas Independent Bar Association

(Emily Litella): What's all this fuss about the right to bare arms? What's wrong with bare arms anyway? It's not like showing acres of boobies like some of these young whippersnappers do. There's nothing sinful about a bare arm people. Okay, so some bare arms are kind of ugly with those splotchy looking brown spots and some are ugh, hairy. Yeah, some are wrinkled and flabby with all that loose flesh doin' the hangy down thing. But you don't have to look for Pete's sake. Just discretely turn away and pretend those arms don't exist.

Now some of the young boys have big, muscled arms that they bare every chance they get. That's not so bad, not bad at all. So what's the big deal about some kind of amendment? What's that about?

("News Anchor" Jane Curtain): Emily, that's the right to bear arms. Not bare arms. Like a well armed militia. It's in the constitution Emily.

(Emily Litella): Oh, well that's entirely different. Never mind.

Obviously Stolen from Saturday Night Live

First, a disclaimer. I own several firearms and have had guns for more than 40 years. I currently own several guns, some for hunting (even though I haven't been hunting since I was in law school, nearly 30 years ago) and some for personal protection, and which are regularly cleaned and strategically placed.

In short, I do not have an anti-gun personality. I am not, however, against the regulation of my right to keep and bear arms. All of the guns I currently own were acquired as gifts or

David A. Schulman has been a co-author of this report for many years and was one of the founders of TIBA. David was a member of the Court of Criminal Appeals' central staff in 1991-1993. He has been lead counsel in hundreds of direct appeals and habeas corpus proceedings, and reviews every published criminal case from the Court of Criminal Appeals and every Court of Appeals on a weekly basis. David has been Board Certified in Criminal Law since 1991 and recently spearheaded the successful effort leading to the creation of the Criminal Appellate specialization area. David was the first to apply for certification and, in 2011, was one of the first attorneys to become Board Certified in both Criminal Law and Criminal Appellate law. Find him at .

TIBA's Texas Law Reporter - Vol. 21, No. 10 - March 11, 2013 - Page 1

through inheritance, so I haven't been through a background check since the last time I purchased firearms through a dealer, in the 1970s. You won't hear an objection to background checks on my part.

So why this article? The answer is simple -- given the current debate over gun control and what regulation is or would be reasonable, my concerns about a well regulated militia and how the courts have answered the questions related to that phrase and the Second Amendment itself, popped up in my brain once again. The best place to start is probably with the Second Amendment1 itself.

The history of Second Amendment litigation is long and colorful, and is not easy to follow or understand. It is absolutely clear, however, that the "right to keep and bear arms"is and has been central to American history, both real and perceived.

In Houston v. Moore, 18 U.S. 1 (1820), for example, the Supreme Court of the United States took up the question caused by "Houston,"2 who was enrolled as a private in the Pennsylvania militia, although being "duly notified and called upon," neglected to "march with the detachment to the appointed place of rendezvous," and was made subject to court-martial. He was found guilty and ordered to pay a fine.

When Houston failed to pay the fine, the State caused a levy to be placed on his property. Houston then brought a trespass action in State court against the deputy marshal who had registered the levy. The case worked its way to the Supreme Court, where the question was "whether the act of the legislature of Pennsylvania, under the authority of which the plaintiff in error was tried, and sentenced to pay a fine, is repugnant to the constitution of the United States, or not?" Houston, 18 U.S. at 12. Ultimately, the Court held that it was. "Upon the whole, with whatever reluctance, I feel myself bound to declare, that the clauses of the militia act of Pennsylvania now in question are repugnant to the constitutional laws of congress on the

1 As submitted on March 4, 1789, and finally ratified on December 15, 1791. 2 Mr. Houston's first name is not mentioned in the opinion.

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same subject, and are utterly void; and that, therefore, the judgment of the state court ought to be reversed." Houston, 18 U.S. at 75-76.

According to the official history of the Bureau of Alcohol, Tobacco and Firearms ("ATF"), the National Firearms Act of 1934 was designed to regulate so-called "gangster weapons" such as machine guns and short barreled shotguns. In United States v. Miller, 307 U. S. 174 (1939), it was alleged that the Act was "an attempt to usurp police power reserved to the States, and is therefore unconstitutional." It was also claimed that the Act offended "the inhibition of the Second Amendment." The Supreme Court disagreed.

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.

Miller, 307 U.S. at 178. From that time, there was a judicial consensus that the Second Amendment was primarily concerned with the need to maintain a "well regulated Militia." This consensus remained intact for nearly 70 years, but all changed with District of Columbia et al. v. Heller, 554 U.S. 570 (2008).

A 2001 District of Columbia ordinance generally prohibited the possession of handguns. The ordinance required residents to keep their lawfully owned firearms, such as registered long guns, "unloaded and dissembled or bound by a trigger lock or similar device" unless they were located "in a place of business or are being used for lawful recreational activities."

Dick Heller, a D.C. special police officer authorized to carry a handgun while on duty, applied for a registration certificate for a handgun that he wished to keep at home. The District refused to issue him a certificate. When the case reached it, the Supreme Court acknowledged that "the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right . . . was codified in a written Constitution." Nevertheless, the Court found that "individual self defense . . . was the central component of the right itself," and went on to hold that the Second Amendment restricted Congress' power to regulate handguns used for self-defense.

In a clearly divided 5-4 decision, the Court found that the District's ban on andgun possession in the home "violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." Heller 554 U.S., slip op. at 64. With Heller, I was forced to toss my ideas about the 2nd Amendment out the window.

For the 47 years between U.S. v. Miller and when I became an attorney and my first 22 years of being an attorney, along with thousands of judges, hundreds of thousands of attorneys and millions of Americans, I believed that the phrase "well regulated militia" meant something

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