Defendant Timothy Joe Emerson ("Emerson") moves to dismiss the Indictment
against him, claiming that the statute he is prosecuted under, 18 U.S.C. § 922(g)(8), is an
unconstitutional exercise of congressional power under the Commerce
Clause and the Second,
Fifth,
and Tenth
Amendments to the United States Constitution. For the reasons stated below, the Court GRANTS
Emerson’s Motion to Dismiss.
I.
BACKGROUND
On August 28, 1998, Emerson’s wife, Sacha, filed a petition for divorce and
application for a temporary restraining order in the 119th District Court of Tom Green
County, Texas. The petition stated no factual basis for relief other than the necessary
recitals required under the Texas Family Code regarding domicile, service of process,
dates of marriage and separation, and the "insupportability" of the marriage.
The application for a temporary restraining order—essentially a form order frequently
used in Texas divorce procedure—sought to enjoin Emerson from engaging in various
financial transactions to maintain the financial status quo and from making threatening
communications or actual attacks upon his wife during the pendency of the divorce
proceedings.
On September 4, 1998, the Honorable John E. Sutton held a hearing on Mrs.
Emerson’s application for a temporary restraining order. Mrs. Emerson was represented
by an attorney at that hearing, and Mr. Emerson appeared pro se. Mrs. Emerson
testified about her economic situation, her needs in the way of temporary spousal support
and child support, and her desires regarding temporary conservatorship of their minor
child.
During the hearing, Mrs. Emerson alleged that her husband threatened over the telephone
to kill the man with whom Mrs. Emerson had been having an adulterous affair. However, no
evidence was adduced concerning any acts of violence or threatened violence by Mr. Emerson
against any member of his family, and the district court made no findings to that effect.
Furthermore, the court did not admonish Mr. Emerson that if he granted the temporary
restraining order, Mr. Emerson would be subject to federal criminal prosecution merely for
possessing a firearm while being subject to the order.
II.
ANALYSIS
As stated above, Emerson was indicted for possession of a firearm while being under a
restraining order, in violation of 18 U.S.C. § 922(g)(8)
("the Act"). This statute states that:
(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 . . . .
18 U.S.C. § 922(g)(8).
Emerson argues that 18 U.S.C.
§ 922(g)(8) is an unconstitutional exercise of congressional power under the Commerce
Clause and the Second,
Fifth,
and Tenth
Amendments to the United States Constitution. The Court will address these arguments seriatim.
A.
Commerce
Clause
Emerson first argues that 18
U.S.C. § 922(g)(8) is an unconstitutional exercise of congressional power under the Commerce
Clause of the United States Constitution. U.S. CONST. art. I, § 8, cl. 3. Pursuant to
the Supreme Court’s holding in United
States v. Lopez, 514 U.S. 549 (1995), Emerson argues that the Act is
unconstitutional because it does not regulate commercial activity.
However, the Fifth Circuit Court of Appeals has examined the validity of 18 U.S.C. § 922(g)(8) under a Commerce
Clause challenge and has held that the Act is constitutional. United
States v. Pierson, 139 F.3d 501 (5th Cir. 1998). Accordingly, Emerson
cannot sustain a Motion to Dismiss under a Commerce
Clause challenge.
B.
Second
Amendment
Emerson claims that 18 U.S.C.
§ 922(g)(8) violates his rights under the Second
Amendment to the United States Constitution. The Second
Amendment states that:
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 beinfringed.
U.S.
CONST. amend. II.
Only if the Second
Amendment guarantees Emerson a personal right to bear arms can he claim a
constitutional violation. Whether the Second
Amendment recognizes an individual right to keep and bear arms is an issue of first
impression within the Fifth Circuit. Emerson claims that he has a personal right to bear
arms which the Act infringes, while at oral argument on the Motion to Dismiss, the
Government claimed it is "well settled" that the Second
Amendment creates a right held by the States and does not protect an individual right
to bear arms.
1.
Second
Amendment Schools of Thought
Two main schools of thought have developed on the issue of whether the Second
Amendment recognizes individual or collective rights. These schools of thought are
referred to as the "states’ rights," or "collective rights,"
school and the "individual rights" school. The former group cites the opening
phrase of the amendment, along with subsequent case law, as authority for the idea that
the right only allows states to establish and maintain militias, and in no way creates or
protects an individual right to own arms. David E. Johnson, Note, Taking a Second Look
at the Second Amendment and Modern Gun Control Laws, 86 KY. L.J. 197, 198 (1997-98)
(citing Andrew D. Herz, Gun Crazy: Constitutional False Consciousness and Dereliction
of Dialogic Responsibility, 75 B.U. L. REV. 57 (1995)). Due to changes in the
political climate over the last two centuries and the rise of National Guard organizations
among the states, states’ rights theorists argue that the Second
Amendment is an anachronism, and that there is no longer a need to protect any right
to private gun ownership.
The individual rights theorists, supporting what has become known in the academic
literature as the "Standard Model," argue that the amendment protects an
individual right inherent in the concept of ordered liberty, and resist any attempt to
circumscribe such a right. Id. (citing Glenn Harlan Reynolds, A Critical Guide to the Second
Amendment, 62 TENN. L. REV. 461, 464-88 (1995); Robert Dowlut, The Right to Keep and Bear Arms: A
Right to Self-Defense Against Criminals and Despots, 8 STAN. L. & POL'Y REV.
25 (1997)).
2.
Textual Analysis
A textual analysis of the Second
Amendment supports an individual right to bear arms. A distinguishing characteristic
of the Second
Amendment is the inclusion of an opening clause or preamble, which sets out its
purpose. No similar clause is found in any other amendment. Stanford Levinson, The Embarrassing Second Amendment,
99 YALE L.J. 637, 644 (1989). While states’ rights theorists seize upon this first
clause to the exclusion of the second, both clauses should be read in pari materia,
to give effect and harmonize both clauses, rather than construe them as being mutually
exclusive.
The amendment reads "[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. Within the amendment are two distinct clauses, the first subordinate
and the second independent. If the amendment consisted solely of its independent clause,
"the right of the people to keep and bear Arms, shall not be infringed," then
there would be no question whether the right is individual in nature. David E. Johnson,
Note, Taking a Second Look at the Second Amendment and Modern Gun Control Laws, 86
KY. L.J. 197, 200 (1997-98).
Collective rights theorists argue that addition of the subordinate clause qualifies the
rest of the amendment by placing a limitation on the people’s right to bear arms. Id.
However, if the amendment truly meant what collective rights advocates propose, then
the text would read "[a] well regulated Militia, being necessary to the security of a
free State, the right of the States to keep and bear Arms, shall not be
infringed." However, that is not what the framers of the amendment drafted. The plain
language of the amendment, without attenuate inferences therefrom, shows that the function
of the subordinate clause was not to qualify the right, but instead to show why it must be
protected. Id. The right exists independent of the existence of the militia. If
this right were not protected, the existence of the militia, and consequently the security
of the state, would be jeopardized. Id. at 201.
The Supreme Court recently interpreted the text of the Second
Amendment and noted that the phrase "the people" in the Second
Amendment has the same meaning in both the Preamble to the Constitution and in the First,
Fourth,
Fifth,
and Ninth
Amendments. United
States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). The Court held that the
phrase "the people" "seems to have been a term of art employed in select
parts of the Constitution."
The Second
Amendment protects "the right of the people to keep and bear Arms," and the Ninth
and Tenth
Amendments provide that certain rights and powers are retained by and reserved to
"the people."
* * *
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, . . . refers to a class of persons who are part of a national community or who
have otherwise developed sufficient connection with this country to be considered part of
that community. See United
States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904).
The Court has also held that given their contemporaneous proposal and passage, the
amendments of the Bill of Rights should be read in pari materia, and amendments
which contain similar language should be construed similarly. Patton
v. United States, 281 U.S. 276, 298 (1930), cited by David Harmer, Securing
a Free State: Why the Second Amendment Matters, 1998 BYU L. REV. 55, 61 (1998). The
Court’s construction of "the people" as used in the Second
Amendment supports a holding that the right to keep and bear arms is a personal right
retained by the people, as opposed to a collective right held by the States. Thus, a
textual analysis of the Second
Amendment clearly declares a substantive right to bear arms recognized in the people
of the United States.
3.
Historical Analysis
"[T]here is a long tradition of widespread lawful gun ownership by private
individuals in this country." Staples
v. United States, 511 U.S. 600, 610 (1994). A historical examination of the right
to bear arms, from English antecedents to the drafting of the Second
Amendment, bears proof that the right to bear arms has consistently been, and should
still be, construed as an individual right.
a.
English History
A review of English history explains the founders’ intent in drafting the Second
Amendment. As long ago as 690 A.D., Englishmen were required to possess arms and to
serve in the military. David T. Hardy, Armed Citizens, Citizen Armies:
Toward a Jurisprudence of the Second Amendment, 9 HARV. J.L. & PUB. POL’Y
559, 562 (1986) (citing 1 JOHN J. BAGLEY & PETER B. ROWLEY, A DOCUMENTARY HISTORY OF
ENGLAND 1066-1540, at 152 (1965)). This obligation continued for centuries, requiring
nobility, and later commoners, to keep arms and participate in the militia. Id. at
563-65. The obligation to keep arms was not simply to provide military service in the
king’s army; English citizens were also required to provide local police services,
such as pursuing criminals and guarding their villages. CLAYTON E. CRAMER, FOR THE DEFENSE OF THEMSELVES AND THE
STATE: THE ORIGINAL INTENT AND JUDICIAL INTERPRETATION OF THE RIGHT TO KEEP AND BEAR ARMS
24-25 (1994); JOYCE LEE MALCOLM, TO
KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 2 (1994).
By the middle of the seventeenth century, however, the sovereign jeopardized the
individual right to bear arms. Charles II, and later James II, began to disarm many of
their Protestant subjects. Hardy, supra, at 574-79. James II was an unpopular king
whose policies stirred great resentment among both the political and religious communities
of England. David E. Murley, Private Enforcement of the Social Contract: Deshaney and
the Second Amendment Right to Own Firearms, 36 DUQ. L. REV. 15, 19 (1997). Eventually,
James II fled England during what was later termed the Glorious Revolution. Hardy, supra,
at 579. In the aftermath of the Glorious Revolution, Parliament passed the English Bill of
Rights in 1689, codifying the individual right to bear arms. Id. at 580. The Bill
of Rights provided that "the subjects which are Protestant may have arms for their
defense suitable to their conditions and as allowed by law." Id. at 581.
b.
The Colonial Right To Bear Arms
The American colonists exercised their right to bear arms under the English Bill of
Rights. Indeed, the English government’s success in luring Englishmen to America was
due in part to pledges that the immigrants and their children would continue to possess
"all the rights of natural subjects, as if born and abiding in England."
MALCOLM, supra, at 138. As in England, the colonial militia played primarily a
defensive role, with armies of volunteers organized whenever a campaign was necessary. Id.
at 139. Statutes in effect bore evidence of an individual right to bear arms during
colonial times. For example, a 1640 Virginia statute required "all masters of
families" to furnish themselves and "all those of their families which shall be
capable of arms . . . with arms both offensive and defensive." Id. (citing THE
OLD DOMINION IN THE SEVENTEENTH CENTURY: A DOCUMENTARY HISTORY OF VIRGINIA, 1606-1689, at
172 (Warren M. Billings ed., 1975). A 1631 Virginia law required "all men that are
fittinge to beare armes, shall bring their pieces to church . . . for drill and target
practice." Hardy, supra, at 588 (quoting 1 WILLIAM W. HENING, THE STATUTES AT
LARGE: BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA FROM THE FIRST SESSION OF THE
LEGISLATURE IN THE YEAR 1619, at 173-74 (reprint. 1969) (1823). These laws served the
twofold purpose of providing individual self-defense while giving England a reserve force
available in time of war. Murley, supra, at 20.
Following the French and Indian War, England increased taxes and stationed a large army
in the colonies. On April 3, 1769, the Boston Evening Post announced that colonial
authorities urged the citizenry to take up arms. In reply to the claim that this request
was unlawful, the newspaper observed that:
It is certainly beyond human art and sophistry, to prove the British subjects, to whom
the privilege of possessing arms as expressly recognized by the Bill of Rights, and
who live in a province where the law requires them to be equipped with arms, are
guilty of an illegal act, in calling upon one another to be provided with them, as
the law directs.
Hardy, supra, at 589-90 (quoting OLIVER M. DICKERSON, BOSTON UNDER MILITARY RULE
61 (1936)). Shortly after the "Boston Tea Party," British soldiers, led by
General Gage, attempted to disarm the colonists. MALCOLM, supra, at 144. The
British Parliament banned all exports of muskets and ammunition to the colonies and began
seizing the colonists’ weapons and ammunition. Id. The British efforts to
disarm the colonists hardened American resistance. At that point, the colonists began to
form the "minutemen," a nationwide select militia organization. Hardy, supra at
890. In February 1775, a colonial militia prevented the British from seizing weapons at an
armory in Salem, Massachusetts. Two months later, the colonists defeated British troops at
Concord. Id. at 591. Distinguished colonial leaders, such as George Washington and
Samuel Adams, strongly influenced the organization of these local militias. STEPHEN P.
HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT 60-61 (1984).
The "militia" which won the Revolutionary War consisted of all who were
treated as full citizens of the community. George Mason stated, "Who are the militia?
They consist now of the whole people." Sanford Levinson, The Embarrassing Second Amendment,
99 Yale L.J. 637, 647 (1989) (citing statement of George Mason (June 14, 1788), in 3
JONATHAN ELLIOTT, DEBATES IN THE GENERAL STATE CONVENTIONS 425 (3d ed. 1937)). Similarly,
the Federal Farmer referred to a "militia, when properly formed, [as] in fact the
people themselves." Id. (quoting RICHARD HENRY LEE, OBSERVATIONS LEADING TO A
FAIR EXAMINATION OF THE SYSTEM OF GOVERNMENT PROPOSED BY THE LATE CONVENTION: LETTERS FROM
THE FEDERAL FARMER TO THE REPUBLICAN 123 (Walter H. Bennett ed., 1978)).
The individual right to bear arms, a right recognized in both England and the colonies,
was a crucial factor in the colonists’ victory over the British army in the
Revolutionary War. Without that individual right, the colonists never could have won the
Revolutionary War. After declaring independence from England and establishing a new
government through the Constitution, the American founders sought to codify the individual
right to bear arms, as did their forebears one hundred years earlier in the English Bill
of Rights.
c.
The Ratification Debates
A foundation of American political thought during the Revolutionary period was the well
justified concern about political corruption and governmental tyranny. Even the
federalists, fending off their opponents who accused them of creating an oppressive
regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the
framers saw the personal right to bear arms as a potential check against tyranny. Theodore
Sedgwick of Massachusetts expressed this sentiment by declaring that it is "a
chimerical idea to suppose that a country like this could ever be enslaved . . . Is it
possible . . . that an army could be raised for the purpose of enslaving themselves or
their brethren? or, if raised whether they could subdue a nation of freemen, who know how
to prize liberty and who have arms in their hands?" MALCOLM, supra at 157
(citing 2 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF
THE FEDERAL CONSTITUTION 97 (2d ed. 1863)). Noah Webster similarly argued:
Before a standing army can rule the people must be disarmed; as they are in almost
every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the
sword; because the whole body of the people are armed, and constitute a force superior to
any band of regular troops that can be, on any pretence, raised in the United States.
Id. (citing NOAH WEBSTER, AN EXAMINATION INTO THE LEADING PRINCIPLES OF THE
FEDERAL CONSTITUTION (1787), reprinted in PAMPHLETS ON THE CONSTITUTION OF THE
UNITED STATES, PUBLISHED DURING ITS DISCUSSION BY THE PEOPLE, 1787-1788, at 56 (Paul L.
Ford, ed. 1971) (1888)). Richard Lee Henry’s view that a well regulated militia was
the entire armed populace rather than a select body of men was reiterated by proponents to
a bill of rights. As "M.T. Cicero" wrote to "The Citizens of America":
Whenever, therefore, the profession of arms becomes a distinct order in the state . . .
the end of the social compact is defeated . . . .
No free government was ever founded, or ever preserved its liberty, without uniting the
characters of the citizen and the soldier in those destined for the defence of the state .
. . . Such are a well regulated militia, composed of the freeholders, citizen and
husbandman, who take up arms to preserve their property, as individuals, and their rights
as freemen.
HALBROOK, supra at 72 (citing STATE GAZETTE (Charleston), Sept. 8, 1788).
George Mason argued the importance of the militia and right to bear arms by reminding his
compatriots of England’s efforts "to disarm the people; that it was the best and
most effectual way to enslave them . . . by totally disusing and neglecting the
militia." Id. at 74 (citing 3 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL
STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 380 (2d ed. 1863)). He also
clarified that under prevailing practice the militia included all people, rich and poor.
"Who are the militia? They consist now of the whole people, except a few public
officers." Id. (citing 3 ELLIOT at 425-26). Because all were members of the
militia, all enjoyed the right to individually bear arms to serve therein.
The framers thought the personal right to bear arms to be a paramount right by which
other rights could be protected. Therefore, writing after the ratification of the
Constitution, but before the election of the first Congress, James Monroe included
"the right to keep and bear arms" in a list of basic "human rights"
which he proposed to be added to the Constitution. HALBROOK, supra at 223 n. 145
(citing James Monroe Papers, New York Public Library (Miscellaneous Papers of James
Monroe)).
The framers also saw an armed populace as the safeguard of religious liberty. Zachariah
Johnson told the Virginia convention their liberties would be safe because
the people are not to be disarmed of their weapons. They are left in full possession of
them. The government is administered by the representatives of the people, voluntarily and
freely chosen. Under these circumstances should anyone attempt to establish their own
system [of religion], in prejudice of the rest, they would be universally detested and
opposed, and easily frustrated. This is the principle which secures religious liberty most
firmly. The government will depend on the assistance of the people in the day of distress.
MALCOLM, supra at 157 (citing 3 ELLIOT 646)).
Patrick Henry, also in the Virginia convention, eloquently argued for the dual rights to
arms and resistance to oppression: "Guard with jealous attention the public liberty.
Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but
downright force. Whenever you give up that force, you are ruined." HALBROOK, supra
at 73 (citing 3 ELLIOT at 45). Thus, the federalists agreed with Blackstone that an
armed populace was the ultimate check on tyranny. MALCOLM, supra at 157.
While both Monroe and Adams supported ratification of the Constitution, its most
influential framer was James Madison. In The Federalist No. 46,
he confidently contrasted the federal government of the United States to the European
despotisms which he contemptuously described as "afraid to trust the people with
arms." He assured his fellow citizens that they need never fear their government
because of "the advantage of being armed." Don B. Kates, Jr., Handgun Prohibition and The Original
Meaning of The Second Amendment, 82 MICH. L. REV. 204, 228 (1983) (quoting THE FEDERALIST NO. 46,
at 371 (James Madison) (John. C. Hamilton ed., 1864)). Many years later, Madison restated
the sentiments of The
Federalist No. 46 by declaring: "[A] government resting on a minority is an
aristocracy, not a Republic, and could not be safe with a numerical and physical force
against it, without a standing army, an enslaved press, and a disarmed populace." Id.
(quoting RALPH L. KETCHAM, JAMES MADISON: A BIOGRAPHY 64, 640 (1971)).
Although on the other side of the ratification debate, Anti-Federalist Patrick Henry
was unequivocal on the individual right to bear arms. During the Virginia ratification
convention, he objected to the Constitution’s inclusion of clauses specifically
authorizing a standing army and giving the federal government control of the militia. He
also objected to the omission of a clause forbidding disarmament of the individual
citizen: "The great object is that every man be armed . . . . [e]veryone who is able
may have a gun." Id. at 229 (citing 3 J. ELLIOTT, supra, at 45).
By January of 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut
ratified the Constitution without insisting upon amendments. Several specific amendments
were proposed, but were not adopted at the time the Constitution was ratified. The
Pennsylvania convention, for example, debated fifteen amendments, one of which concerned
the right of the people to be armed, another with the militia. The amendment on the right
to bear arms read:
That the people have a right to bear arms for the defence 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; and as standing armies in time of peace are
dangerous to liberty, they ought not to be kept up; and that the military shall be kept
under strict subordination to and be governed by the civil power.
MALCOLM, supra at 158 (citing PENNSYLVANIA AND THE FEDERAL CONSTITUTION,
1787-1788, at 422).
The Massachusetts convention also ratified the Constitution with an attached list of
proposed amendments. Id. In the end, the ratification convention was so evenly
divided between those for and against the Constitution that the federalists agreed to
amendments to assure ratification. Id. Samuel Adams proposed that the Constitution
[B]e never construed to authorize Congress to infringe the just liberty of the press,
or the rights of conscience; or to prevent the people of the United States, who are
peaceable citizens, from keeping their own arms; or to raise standing armies, unless when
necessary for the defence of the United States, or of some one or more of them; or to
prevent the people from petitioning, in a peaceable and orderly manner, the federal
legislature, for a redress of their grievances: or to subject the people to unreasonable
searches and seizures.
Id. (citing DEBATES AND PROCEEDINGS IN THE CONVENTION OF THE COMMONWEALTH OF
MASSACHUSETTS, HELD IN THE YEAR 1788, at 198-99 (Bradford Pierce and Charles Hale, ed.,
1856)).
Other states which had not yet ratified the Constitution followed the Maryland
convention’s practice of ratifying the Constitution while submitting proposed
amendments. The New Hampshire convention, for example, adopted the nine Massachusetts
amendments and added three others: one to limit standing armies, a second to ensure an
individual right to bear arms, and a third to protect freedom of conscience. Id. The
proposed amendment on freedom to bear arms read: "Congress shall never disarm any
Citizen unless such as are or have been in Actual Rebellion." Id. at 158-59
(citing 2 DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES, 1787-1870, at 143
(1894)).
d.
Drafting the Second
Amendment
When the first Congress convened on March 4, 1789, James Madison, who had previously
advocated passage of the Constitution without amendments, now pressed his colleagues to
act on a bill of rights. MALCOLM, supra at 159. When his initial efforts failed to
produce any response, he drafted his own version of a bill of rights and presented them to
members of Congress on June 8 of that year. Id. He explained to Jefferson that he
deliberately drafted the amendments to be unexceptional and therefore likely to win
approval. Id. (citing RONALD RUTLAND, THE BIRTH OF THE BILL OF RIGHTS 209 (1991)).
His version of what would later be the second amendment read:
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.
MALCOLM, supra at 159.
That Madison envisioned a personal right to bear arms, rather than merely a right for
the states to organize militias, is evident from his desired placement of the right in the
Constitution. Madison’s original plan was to designate the amendments as inserts
between specific sections of the existing Constitution, rather than as separate amendments
added to the end of the document. Hardy, supra at 609 (citing 1 ANNALS OF CONGRESS
707-08 (Joseph Gales ed., 1789)). Madison did not designate the right to keep and bear
arms as a limitation of the militia clause of Section 8 of Article I. Rather, he placed it
as part of a group of provisions (with freedom of speech and the press) to be inserted in
"Article 1st, Section 9, between Clauses 3 and 4." Id. (quoting 5
DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 186-87 (1905)).
Such a designation would have placed this right immediately following the few individual
rights protected in the original Constitution, dealing with the suspension of bills of
attainder, habeas corpus, and ex post facto laws. Thus Madison aligned the right to bear
arms along with the other individual rights of freedom of religion and the press, rather
than with congressional power to regulate the militia. Id. This suggested placement
of the Second
Amendment reflected recognition of an individual right, rather than a right dependent
upon the existence of the militia.
At that point, the Senate took up the Bill of Rights. Unfortunately, Senate debate on
the issue was held in secret, and therefore no record exists of that body’s
deliberations. CRAMER, supra at 58 (citing HELEN VEIT ET AL., CREATING THE BILL OF
RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS xix (1991)). The Senate
form of the second amendment now described the militia not as "the best
security" of a free state, but as "necessary to the security" of a free
state, an even stronger endorsement than Madison’s original description. MALCOLM, supra
at 161. The Senators also omitted the phrase describing the militia as "composed
of the body of the people." Elbridge Gerry’s fear that future Congresses might
expand on the religious exemption clause evidently convinced the Senate to eliminate that
clause as well. Id. Even more important, however, was the Senate’s refusal of
a motion to add "for the common defense" after the phrase "to keep and bear
arms." Id. (citing HALBROOK, supra at 81, n. 167). Thus the American
Bill of Rights, like the English Bill of Rights, recognized the individual’s right to
have weapons for his own defense, rather than for collective defense. Id. In this
form, Congress approved the Second
Amendment and sent the Bill of Rights to the state legislatures for ratification. Id.
In retrospect, the framers designed the Second
Amendment to guarantee an individual’s right to arms for self-defense. Such an
individual right was the legacy of the English Bill of Rights. American colonial practice,
the constitutional ratification debates, and state proposals over the amendment all bear
this out. Id. at 162. The American Second
Amendment also expanded upon the English Bill of Rights’ protection; while
English law allowed weapons "suitable to a person’s condition" "as
allowed by law," the American right forbade any "infringement" upon the
right of the people to keep and bear arms. Id.
In his influential Commentaries on the Constitution, Joseph Story emphasized the
importance of the Second
Amendment. He described the militia as the "natural defence of a free
country" not only "against sudden foreign invasions" and "domestic
insurrections," but also against "domestic usurpations of power by rulers."
He went on to state that "[t]he right of the citizens to keep and bear arms has
justly been considered as the palladium of the liberties of a republic; since it offers a
strong moral check against the usurpation and arbitrary power of rulers; and will
generally, even if these are successful in the first instance, enable the people to resist
and triumph over them." 3 J. Story, Commentaries § 1890, p. 746 (1833).
4.
Structural Analysis
The structure of the Second
Amendment within the Bill of Rights proves that the right to bear arms is an
individual right, rather than a collective one. The collective rights’ idea that the Second
Amendment can only be viewed in terms of state or federal power "ignores the
implication that might be drawn from the Second,
Ninth,
and Tenth
Amendments: the citizenry itself can be viewed as an important third component of
republican governance as far as it stands ready to defend republican liberty against the
depredations of the other two structures, however futile that might appear as a practical
matter." Sanford Levinson, The
Embarrassing Second Amendment, 99 YALE L.J. 637, 651 (1989).
Furthermore, the very inclusion of the right to keep and bear arms in the Bill of
Rights shows that the framers of the Constitution considered it an individual right.
"After all, the Bill of Rights is not a bill of states’ rights, but the bill of
rights retained by the people." David Harmer, Securing a Free State: Why The
Second Amendment Matters, 1998 BYU L. REV. 55, 60 (1998). Of the first ten amendments
to the Constitution, only the Tenth
concerns itself with the rights of the states, and refers to such rights in addition to,
not instead of, individual rights. Id. Thus the structure of the Second
Amendment, viewed in the context of the entire Bill of Rights, evinces an intent to
recognize an individual right retained by the people.
5.
Judicial Interpretations
The Court notes that several other federal courts have held that the Second
Amendment does not establish an individual right to keep and bear arms, but rather a
"collective" right, or a right held by the states. See, e.g., Hickman
v. Block, 81 F.3d 98, 100-01 (9th Cir. 1996) (holding that plaintiff lacked
standing to sue for denial of concealed weapons permit, because Second
Amendment does not protect possession of weapon by private citizen; right to bear arms
is held by the states); Love
v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995) (holding that Second
Amendment does not confer absolute individual right); United States v. Warin, 530 F.2d
103, 106-07 (6th Cir. 1976) (holding that Second
Amendment guarantees a collective rather than an individual right; fact that an
individual citizen, like all others, may enroll in state militia does not confer right to
possess submachine gun); Cases
v. United States, 131 F.2d 916, 920-23 (1st Cir. 1942) (holding that federal
government may limit the keeping and bearing of arms by a single individual); Hamilton
v. Accu-Tek, 935 F. Supp. 1307, 1318 (E.D.N.Y. 1996) (holding that Second
Amendment right to bear arms establishes a collective rather than an individual or
private right).
However, the only modern Second
Amendment case from the Supreme Court is United
States v. Miller, 307 U.S. 174 (1939). Jack Miller was charged with moving a
sawed-off shotgun in interstate commerce in violation of the National Firearms Act of
1934. Among other things, Miller had not registered the firearm, as required by the Act.
The court below dismissed the charge, accepting Miller’s argument that the Act
violated the Second
Amendment.
The Supreme Court reversed unanimously, with Justice McReynolds writing the opinion.
Interestingly enough, he emphasized that there was no evidence showing that a sawed-off
shotgun "at this time has some reasonable relationship to the preservation or
efficiency of a well regulated militia." Id. at 178. And "[c]ertainly 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." Id. at 178
(citation omitted). Thus, Miller might have had a tenable argument had he been able to
show that he was keeping or bearing a weapon that clearly had a potential military use.
Justice McReynolds went on to describe the purpose of the Second
Amendment as "assur[ing] the continuation and render[ing] possible the
effectiveness of [the Militia]." Id. at 178. He contrasted the Militia with
troops of a standing army, which the Constitution indeed forbade the states to keep
without the explicit consent of Congress. "The sentiment of the time strongly
disfavored standing armies; the common view was that adequate defense of country and laws
could be secured through the Militia—civilians primarily, soldiers on occasion."
Id. at 179. McReynolds noted further that "the debates in the Convention, the
history and legislation of Colonies and States, and the writings of approved commentators
[all] [s]how plainly enough that the Militia comprised all males physically capable of
acting in concert for the common defense." Id.
It is difficult to interpret Miller
as rendering the Second
Amendment meaningless as a control on Congress. Ironically, one can read Miller
as supporting some of the most extreme anti-gun control arguments; for example, that
the individual citizen has a right to keep and bear bazookas, rocket launchers, and other
armaments that are clearly used for modern warfare, including, of course, assault weapons.
Under Miller,
arguments about the constitutional legitimacy of a prohibition by Congress of private
ownership of handguns or, what is much more likely, assault rifles, thus might turn on the
usefulness of such guns in military settings. Sanford Levinson, The Embarrassing Second Amendment,
99 YALE L.J. 637, 654-55 (1989).
Miller
did not answer the crucial question of whether the Second
Amendment embodies an individual or collective right to bear arms. Although its
holding has been used to justify many previous lower federal court rulings circumscribing Second
Amendment rights, the Court in Miller
simply chose a very narrow way to rule on the issue of gun possession under the Second
Amendment, and left for another day further questions of Second
Amendment construction. See Printz
v. United States, 521 U.S. 898, 937-38 & n.1, 2 (1997) (Thomas, J.,
concurring).
This Court has not had recent occasion to consider the nature of the substantive right
safeguarded by the Second
Amendment. [see
footnote 2] If, however, the Second
Amendment is read to confer a personal right to "keep and bear arms,"
a colorable argument exists that the Federal Government’s regulatory scheme, at least
as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that
Amendment’s protections. [see footnote 3]
6.
Prudential Concerns
Some scholars have argued that even if the original intent of the Second
Amendment was to provide an individual right to bear arms, modern-day prudential
concerns about social costs outweigh such original intent and should govern current review
of the amendment. However, there is a problem with such reasoning. If one accepts the
plausibility of any of the arguments on behalf of a strong reading of the Second
Amendment, but, nevertheless, rejects them in the name of social prudence and the
present-day consequences of an individual right to bear arms, why do we not apply such
consequentialist criteria to each and every part of the Bill of Rights? Levinson, supra
at 658.
As Professor Ronald Dworkin has argued, what it means to take rights seriously is that
one will honor them even when there is significant social cost in doing so. Protecting
freedom of speech, the rights of criminal defendants, or any other part of the Bill of
Rights has significant costs—criminals going free, oppressed groups having to hear
viciously racist speech and so on—consequences which we take for granted in defending
the Bill of Rights. This mind-set changes, however, when the Second
Amendment is concerned. "Cost-benefit" analysis, rightly or wrongly, has
become viewed as a "conservative" weapon to attack liberal rights. Yet the
tables are strikingly turned when the Second
Amendment comes into play. Here "conservatives" argue in effect that social
costs are irrelevant and "liberals" argue for a notion of the "living
Constitution" and "changed circumstances" that would have the practical
consequence of erasing the Second
Amendment from the Constitution. Levinson, supra at 657-58.
Other commentators, including Justice Scalia, have argued that even if there would be
"few tears shed if and when the Second
Amendment is held to guarantee nothing more than the state National Guard, this would
simply show that the Founders were right when they feared that some future generation
might wish to abandon liberties that they considered essential, and so sought to protect
those liberties in a Bill of Rights. We may tolerate the abridgement of property rights
and the elimination of a right to bear arms; but we should not pretend that these are not
reductions of rights." Sanford Levinson, Is the Second Amendment Finally Becoming
Recognized As Part of the Constitution? Voices from the Courts, 1998 BYU L. REV. 127,
132 (1998) (quoting Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role
of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of
Interpretation: Federal Courts and the Law 3, 43 (Amy Gutmann, ed. 1997).
In response to arguments propounded by Professor Laurence Tribe and others describing
the Second
Amendment as being simply "seemingly state-militia-based" rather than
"supporting broad principles" of private ownership of guns, Justice Scalia
pointed out that it is incorrect to assume that the word "militia" refers only
to "‘a select group of citizen-soldiers . . . rather than, as the Virginia Bill
of Rights of June 1776 defined it, ‘the body of the people, trained to
arms."’ Antonin Scalia, Response, in A Matter of Interpretation, supra at
129, 136 n.13 (quoting JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS 136, 148
(1994)).
Justice Scalia also notes that "[t]his was also the conception of
‘militia’ entertained by James Madison," citing The Federalist No. 46
for support. Id. "It would also be strange," he goes on to say, "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.’ Dispassionate scholarship
suggests quite strongly that the right of the people to keep and bear arms meant just
that." Id. at 137 n.13 (citing JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS (1994);
William Van Alstyne, The
Second Amendment and the Personal Right to Arms, 43 DUKE L.J. 1236 (1994)).
Justice Scalia concludes by stating that "[i]t is very likely that modern
Americans no longer look contemptuously, as Madison did, upon the governments of Europe
that ‘are afraid to trust the people with arms,’ The Federalist No. 46;
and the . . . Constitution that Professor Tribe espouses will probably give effect to that
new sentiment by effectively eliminating the Second
Amendment. But there is no need to deceive ourselves as to what the original Second
Amendment said and meant. Of course, properly understood, it is no limitation upon
arms control by the states." Id.
Thus, concerns about the social costs of enforcing the Second
Amendment must be outweighed by considering the lengths to which the federal courts
have gone to uphold other rights in the Constitution. The rights of the Second
Amendment should be as zealously guarded as the other individual liberties enshrined
in the Bill of Rights.
7.
Constitutionality of 18 U.S.C. § 922(g)(8)
18 U.S.C. §922(g)(8) is
unconstitutional because it allows a state court divorce proceeding, without
particularized findings of the threat of future violence, to automatically deprive a
citizen of his Second
Amendment rights. The statute allows, but does not require, that the restraining order
include a finding that the person under the order represents a credible threat to the
physical safety of the intimate partner or child. 18 U.S.C. § 922(g)(8)(C)(i). If
the statute only criminalized gun possession based upon court orders with particularized
findings of the likelihood of violence, then the statute would not be so offensive,
because there would be a reasonable nexus between gun possession and the threat of
violence. However, the statute is infirm because it allows one to be subject to federal
felony prosecution if the order merely "prohibits the use, attempted use, or
threatened use of physical force against [an] intimate partner." 18 U.S.C. § 922(g)(8)(C)(ii).
However, prosecution based on such an order would be tautological, for § 922(g)(8)(C)(i) merely
repeats in different wording the requirement in subsection (B) that the order
"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." §922 (g)(8)(B).
All that is required for prosecution under the Act is a boilerplate order with no
particularized findings. Thus, the statute has no real safeguards against an arbitrary
abridgement of Second
Amendment rights. Therefore, by criminalizing protected Second
Amendment activity based upon a civil state court order with no particularized
findings, the statute is over-broad and in direct violation of an individual’s Second
Amendment rights.
By contrast, §922(g)(8)
is different from the felon-in-possession statute, 18 U.S.C. § 922(g)(1), because
once an individual is convicted of a felony, he has by his criminal conduct taken himself
outside the class of law-abiding citizens who enjoy full exercise of their civil rights.
Furthermore, the convicted felon is admonished in state and federal courts that a felony
conviction results in the loss of certain civil rights, including the right to bear arms.
This is not so with § 922(g)(8).
Under this statute, a person can lose his Second
Amendment rights not because he has committed some wrong in the past, or because a
judge finds he may commit some crime in the future, but merely because he is in a divorce
proceeding. Although he may not be a criminal at all, he is stripped of his right to bear
arms as much as a convicted felon. Second
Amendment rights should not be so easily abridged.
It is absurd that a boilerplate state court divorce order can collaterally and
automatically extinguish a law-abiding citizen’s Second
Amendment rights, particularly when neither the judge issuing the order, nor the
parties nor their attorneys are aware of the federal criminal penalties arising from
firearm possession after entry of the restraining order. That such a routine civil order
has such extensive consequences totally attenuated from divorce proceedings makes the
statute unconstitutional. There must be a limit to government regulation on lawful firearm
possession. This statute exceeds that limit, and therefore it is unconstitutional.
C.
Fifth
Amendment
Emerson also contends that 18
U.S.C. § 922(g)(8) violates his Fifth
Amendment due process rights. He argues that the perfunctory, generic temporary orders
issued in his divorce proceedings expose him to federal criminal liability for engaging in
otherwise lawful conduct.
Firearm possession is a valuable liberty interest imbedded in the Second
Amendment to the United States Constitution. "[T]here is a long tradition of
widespread lawful gun ownership by private individuals in this country." Staples
v. United States, 511 U.S. 600, 610 (1994). Thus, Emerson has a protected liberty
interest in firearm possession under the Fifth
Amendment.
"It is wrong to convict a person of a crime if he had no reason to believe that
the act for which he was convicted was a crime, or even that it was wrongful. This
is one of the bedrock principles of American law. It lies at the heart of any civilized
system of law." United
States v. Wilson, 159 F.3d 280, 293 (7th Cir. 1998) (Posner, C.J., dissenting). It
offends both substantive and procedural due process for Emerson to be convicted of a crime
he did not know existed. Because 18
U.S.C. § 922(g)(8) is such an obscure criminal provision, it is unfair to hold him
accountable for his otherwise lawful actions.
The conduct this statute criminalizes is malum prohibitum, not malum in se.
In other words, there was nothing inherently evil about Emerson possessing a firearm while
being under a domestic restraining order. His conduct was unlawful merely because the
statute mandated that it be. Wilson,
159 F.3d at 294 (Posner, C.J., dissenting). Section 922(g)(8) is one of the most
obscure of criminal provisions. Here, Emerson owned a firearm, and knew or should have
known that if, for example, he was convicted of a felony, he would have to relinquish
ownership of his firearm. If by chance he did not know this, the sentencing judge or the
probation officer would have informed him of the law. Nevertheless, when Emerson was made
subject to the restraining order telling him to not harass his wife, Emerson could not
have known of the requirement to relinquish his gun unless the presiding judge issuing the
order told him. In this case, the state district judge did not tell Emerson about the
requirement. Emerson’s attorney did not tell him either, because Emerson did not have
a lawyer. The fact that the restraining order contained no reference to guns may have led
Emerson to believe that since he complied with the order, he could carry on as before. Id.
at 294-95.
Chief Judge Posner of the Seventh Circuit aptly explains the dilemma between the maxim
"ignorance of the law is no excuse" and the inherent unreasonableness of
criminal prosecutions involving obscure violations of law:
We want people to familiarize themselves with the laws bearing on their activities. But
a reasonable opportunity doesn’t mean being able to go to a local law library and
read Title 18. It would be preposterous to suppose that someone from [the
defendant’s] milieu is able to take advantage of such an opportunity. If none of the
conditions that make it reasonable to dispense with proof of knowledge of the law is
present, then to intone "ignorance of the law is no defense" is to condone a
violation of fundamental principles for the sake of a modest economy in the administration
of criminal justice.
Id. at 295.
Section 922(g)(8) is also one
of those "highly technical statutes that present . . . the danger of ensnaring
individuals engaged in apparently innocent conduct," of which the Supreme Court spoke
in Bryan v. United
States, 524 U.S. 184, 118 S. Ct. 1939, 1946-47, 141 L.Ed.2d 197 (1998).
Emerson’s case differs from Bryan because the
statute in this case is easy to understand, but it is hard to discover, which in the end
compels the same result as demonstrated by Lambert
v. California, 355 U.S. 225 (1957).
In Lambert,
a Los Angeles ordinance made it a crime for a convicted felon to remain in the city for
more than five days without registering. Mrs. Lambert, a felon, failed to register. The
Supreme Court held that the ordinance violated due process when applied to a person who
had no notice of a duty to report. Id. at 229. The Court found that, while a
legislative body may eliminate the mens rea from the elements of an offense, the
constitutional requirement of due process of law places limits on this practice. Id. at
228. "[T]he existence of a mens rea is the rule of, rather than the exception
to, the principles of Anglo-American criminal jurisprudence." Staples,
511 U.S. at 605 (citing United
States v. United States Gypsum Co., 438 U.S. 422, 436-37 (1978)). However,
eliminating the mens rea requirement is such a fundamental departure from
longstanding principles of criminal law that courts have demanded an indication of
legislative intent to do so. Staples,
511 U.S. at 606. Due process requires some adequate, meaningful form of a fair warning
or notice to a respondent to a protective order that he will be committing a crime if he
possesses a firearm.
Because § 922(g)(8) is an
obscure, highly technical statute with no mens rea requirement, it violates
Emerson’s Fifth
Amendment due process rights to be subject to prosecution without proof of knowledge
that he was violating the statute. Accordingly, Emerson’s Motion to Dismiss the
indictment as violative of the Fifth
Amendment is granted.
D.
Tenth
Amendment
Emerson’s last argument claims that 18 U.S.C. § 922(g)(8) violates
the Tenth
Amendment. The Tenth
Amendment provides that:
The powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people.
U.S.
CONST. amend. X.
In New
York v. United States, 505 U.S. 144 (1992), the Court noted that Tenth
Amendment issues can be resolved in one of two ways. The court can first inquire
whether an Act of Congress is authorized by one of the powers of Article I of the
Constitution. Id. at 155 (citing, e.g., Perez
v. United States, 402 U.S. 146 (1971); McCulloch
v. Maryland, 4 Wheat 316 (1819)). In other cases the court determines whether the
Act of Congress invades the province of state sovereignty reserved by the Tenth
Amendment. Id. (citing Garcia
v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985); Lane County v.
Oregon, 7 Wall. 71 (1869)).
"If a power is delegated to Congress in the Constitution, the Tenth
Amendment expressly disclaims any reservation of that power to the States; if a power
is an attribute of state sovereignty reserved by the Tenth
Amendment, it is necessarily a power the Constitution has not conferred on
Congress." New
York, 505 U.S. at 156 (citations omitted).
Because the Fifth Circuit has held that Congress acted pursuant to its enumerated Commerce
Clause power under Article I, Congress therefore enacted 18 U.S.C. § 922 (g)(8) pursuant
to a valid grant of power in conformity with the Tenth
Amendment. United
States v. Pierson, 139 F.3d 501 (5th Cir. 1998). As mentioned previously, the
court in Pierson
held that by creating a nexus between illegal firearm possession and interstate
commerce, Congress exercised its delegated power under the Commerce
Clause to reach a "discrete set of firearm possessions that additionally have an
explicit connection with or effect on interstate commerce." Id. at 503.
Therefore, under the first line of inquiry set forth in New
York, the statute is constitutional under the Tenth
Amendment.
The Court now turns to the second line of inquiry, whether the "Act of Congress
invades the province of state sovereignty reserved by the Tenth
Amendment." New
York, 505 U.S. at 155. In New
York, the Court held that the Low-Level Radioactive Waste Policy Amendments Act of
1985 unconstitutionally "commandeer[ed] the legislative processes of the States by
directly compelling them to enact and enforce a federal regulatory program." Id. at
176 (quoting Hodel
v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 288 (1981)).
In 1997, the Court refined this analysis by holding in Printz
v. United States that Congress may act pursuant to its Commerce
Clause powers and still violate principles of state sovereignty under the Tenth
Amendment. 521 U.S. 898, 933 (1997). In Printz,
the Brady Act commandeered state law enforcement officers to perform background checks on
prospective handgun owners. The Court held unconstitutional this asserted power of the
Federal Government "to impress into its service — and at no cost to itself
— the police officers of the 50 states." Id. at 922.
By passing 18 U.S.C. §
922(g)(8), however, Congress did not violate the Tenth
Amendment the way it did in New
York and Printz,
because here the federal government is not requiring state legislatures to pass specific
laws, nor is it "commandeering" state governments into federal government
service. Emerson argues, however, that § 922(g)(8) interferes with the
By passing 18 U.S.C. §
922(g)(8), however, Congress did not violate the Tenth
Amendment the way it did in New
York and Printz,
because here the federal government is not requiring state legislatures to pass specific
laws, nor is it "commandeering" state governments into federal government
service. Emerson argues, however, that § 922(g)(8) interferes with the
ability of state judges to carry out their state's domestic relations laws, thus
impermissibly regulating an area reserved for the states. It is true the Supreme Court has
noted that family law is traditionally an area of state concern. Hisquierdo
v. Hisquierdo, 439 U.S. 572,581(1979). And while it is arguable that § 922(g)(8) may offend general Tenth
Amendment principles of federalism, because Congress was acting through an enumerated
power in drafting the law, and the law does not command state activity in support of it,
this statute does not clearly violate the Tenth
Amendment under the Supreme Court's holdings in New
York and Printz.
Accordingly, Emerson's Tenth
Amendment challenge to the statute fails.
III.
CONCLUSION
Because 18 U.S.C. § 922(g)(8)
violates the Second
and Fifth
Amendments to the United States Constitution, the Court GRANTS Emerson's Motion to
Dismiss the Indictment. A judgment shall be entered in conformity with this opinion.
SO ORDERED.
Dated April 7, 1999
