No. 24-1046
`
`IN THE
`Supreme Court of the United States
`_____________________________
`
`JASON WOLFORD, ALISON WOLFORD, ATOM KASPRZYCKI,
`AND THE HAWAII FIREARMS COALITION,
`Petitioners,
`
`v.
`
`ANNE E. LOPEZ, IN HER OFFICIAL CAPACITY AS THE
`ATTORNEY GENERAL OF THE STATE OF HAWAII,
`Respondent.
`_____________________________
`
`On Petition for Writ of Certiorari to the United States
`Court of Appeals for the Ninth Circuit
`_____________________________
`
`BRIEF OF AMICUS CURIAE FOUNDATION FOR
`MORAL LAW IN SUPPORT OF PETITIONERS
`_____________________________
`
`John A. Eidsmoe*
`Talmadge Butts
`*Counsel of Record
`FOUNDATION FOR MORAL LAW
`P.O. Box 148
`Gallant, AL 35972
`(334) 262-1245
`eidsmoeja@juno.com
`talmadge@morallaw.org
`
`Counsel for Amicus Curiae
`
`May 5, 2025
`
`
`
`
`
`IN THE
`Supreme Court of the United States
`_____________________________
`
`JASON WOLFORD, ALISON WOLFORD, ATOM KASPRZYCKI,
`AND THE HAWAII FIREARMS COALITION,
`Petitioners,
`
`v.
`
`ANNE E. LOPEZ, IN HER OFFICIAL CAPACITY AS THE
`ATTORNEY GENERAL OF THE STATE OF HAWAII,
`Respondent.
`_____________________________
`
`On Petition for Writ of Certiorari to the United States
`Court of Appeals for the Ninth Circuit
`_____________________________
`
`BRIEF OF AMICUS CURIAE FOUNDATION FOR
`MORAL LAW IN SUPPORT OF PETITIONERS
`_____________________________
`
`John A. Eidsmoe*
`Talmadge Butts
`*Counsel of Record
`FOUNDATION FOR MORAL LAW
`P.O. Box 148
`Gallant, AL 35972
`(334) 262-1245
`eidsmoeja@juno.com
`talmadge@morallaw.org
`
`Counsel for Amicus Curiae
`
`May 5, 2025
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`
`Page
`TABLE OF AUTHORITIES .................................... ii
`
`INTEREST OF AMICUS CURIAE ......................... 1
`
`SUMMARY OF THE ARGUMENT ......................... 1
`
`ARGUMENT ............................................................ 2
`
`I. Hawaii’s restriction on carrying firearms
`in certain areas is contrary to the plain
`language of the Second Amendment ................ 3
`
`II. Hawaii’s restriction on carrying firearms
`is contrary to the intent of those who
`drafted the Second Amendment ....................... 4
`
`III. Hawaii’s restriction on carrying firearms
`in certain places is contrary to the
`direction of this Court in recent Second
`Amendment cases ............................................ 20
`
`CONCLUSION ....................................................... 22
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Page
`
`District of Columbia v. Heller,
`554 U.S. 570 (2008) .............................. 3–4, 20–21
`
`McDonald v. Chicago,
`561 U.S. 742 (2010) ......................................20–21
`
`New York State Rifle Pistol Ass’n v. Bruen,
`142 S. Ct. 2111 (2022) ..................................21–22
`
`Pierce v. Society of the Sisters of the Holy
`Names of Jesus and Mary,
`268 U.S. 510, 535 (1925) ................................... 21
`
`Statutes and Constitutions
`
`10 U.S.C. § 311 ....................................................... 15
`
`32 U.S.C. § 109 ....................................................... 19
`
`Dick Act of 1903 ................................................17–18
`
`National Defense Act of 1916 ...........................18–19
`
`Statute of Winchester of A.D. 1285 ....................... 10
`
`Uniform Militia Act of 1792 ........................ 13–14, 17
`
`U.S. Const. amend. II.............................. 3, 13, 21–22
`
`U.S. Const. art. I, § 8 ........................................11–12
`
`Other Authorities
`
`Alexander Hamilton, The Federalist No. 29
`(Carey & McClellan eds., 2001) ........................ 17
`
`Aristotle, Politics (350 B.C.) .................................. 17
`
`
`
`iii
`
`Black’s Law Dictionary (4th ed. 1968) .................. 14
`
`Chaim Herzog & Mordecai Gichon, Battles of
`the Bible (1997) ................................................... 9
`
`Deuteronomy 20:1–9 ................................................ 9
`
`Edward P. Cheyney, A Short History of
`England (1919) .................................................. 10
`
`G. Adams and H. Stephens, Select Documents
`of English Constitutional History (1926) ......... 10
`
`George Washington, Letter to George Mason
`(Apr. 5, 1769) ...................................................... 7
`
`James Madison, First Inaugural Address
`(March 4, 1809) ................................................... 6
`
`James Madison, The Federalist No. 46 (Carey
`& McClellan eds., 2001) ...............................16–17
`
`James Monroe, Second Annual Message to
`Congress (Nov. 16, 1818) .................................... 8
`
`John Locke, The Second Treatise on Civil
`Government (1689) ............................................. 2
`
`Justice Joseph Story, Commentaries on the
`Constitution (1833) ............................................. 7
`
`Massad Ayoob, The Rationale of the
`Automatic
`Rifle
`(2001),
`https://www.backwoodshome.com/the-
`rationale-of-the-automatic-rifle/..................15–16
`
`Militia, American Dictionary of the English
`Language (1828) ............................................... 14
`
`Patrick Henry, Speech in the Virginia
`
`
`
`iv
`
`Ratifying Convention (Jun. 5, 1788) .............. 4–5
`
`Rep. Elbridge Gerry of Massachusetts, spoken
`during floor debate over the Second
`Amendment, Annals of Congress (Aug. 17,
`1789) .................................................................... 5
`
`Richard Henry Lee, Letter from the Federal
`Farmer to the Republic (1788) ....................... 6–7
`
`Roger Sherman, Debates on the Militia Act of
`1792 ..................................................................... 8
`
`Samuel Adams, Debates of the Massachusetts
`Convention of 1788 ......................................... 8–9
`
`Simeon Howard, A Sermon Preached to the
`Ancient and Honorable Artillery Company
`in Boston (Jun. 7, 1773) ...................................... 5
`
`Stephen P. Halbrook, The Founders’ Second
`Amendment (2012) ............................................. 8
`
`Stephen P. Halbrook, That Every Man Be
`Armed: The Evolution of a Constitutional
`Right (2013) ...................................................... 17
`
`Thomas Hobbes, Leviathan (1651) .......................... 2
`
`Thomas Jefferson, Eighth State of the Union
`Address (1808) ................................................ 5–6
`
`Thomas Jefferson, Letter to John Cartwright
`(Jun. 5, 1824) .................................................. 7–8
`
`Thomas Jefferson, Letter to Peter Carr (Aug.
`19, 1785) .............................................................. 6
`
`Thomas Paine, The Crisis (1778) ............................ 6
`
`
`
`1
`
`INTEREST OF AMICUS CURIAE1
`
`Amicus Foundation for Moral Law is a nonprofit
`organization based in Montgomery, Alabama, the
`mission of which
`is
`to defend
`the strict
`interpretation of the Constitution as intended by its
`Framers. Amicus believes the Framers adopted the
`Second Amendment as protection for the basic right
`of self-defense, which is essential to the right to life
`itself. Amicus further believes the contested Hawaii
`statute violates the Second Amendment as intended
`by its Framers.
`
`SUMMARY OF THE ARGUMENT
`
`The State of Hawaii and the Ninth Circuit U.S.
`Court of Appeals have failed to recognize the
`importance of the right to keep and bear arms as one
`of the most basic of all human rights. It is essential
`to the right of self-defense, which is essential to the
`right to life itself.
`
`In downgrading the right to keep and bear arms,
`the state of Hawaii and the U.S. Court of Appeals for
`the Ninth Circuit are in direct conflict with the
`language of
`the Second Amendment, which
`expressly protects the right to “keep” and “bear”
`
`
`1 Counsel of record for all parties received notice at least ten
`days prior to the due date of amicus curiae’s intention to file
`this brief. Pursuant to Rule 37.6, amicus curiae certifies that
`no party or party’s counsel authored this brief in whole or in
`part, or contributed money that was intended to fund its
`preparation or submission; and no person other than the
`amicus curiae, its members, or its counsel, contributed money
`that was intended to fund the preparation or submission of this
`brief.
`
`
`
`2
`
`arms, the spirit of the Framers who drafted the
`Second Amendment, and the recent decisions of this
`Court.
`
`ARGUMENT
`
`This case deals with one of the most basic of all
`human
`rights—the
`right
`to
`life—and
`the
`concomitant right to defend one’s life. This right
`would be meaningless if one were denied the right to
`carry arms in one’s defense.
`
`The Framers developed their understanding of
`unalienable human rights largely through the
`writings of Thomas Hobbes and John Locke. For
`both Hobbes and Locke, all rights stem from the
`fundamental human motivation to preserve their
`own lives. Hobbes states this as his first right of
`nature: “the Liberty each man hath, to use his own
`power, as he will himselfe, for the preservation of his
`own Nature; that is to say, of his own life.” Thomas
`Hobbes, Leviathan XIV (1651).
`
`Similarly, Locke posits that everyone “is bound to
`preserve himself, and not to quit his station
`wilfully.” John Locke, The Second Treatise on Civil
`Government § 6 (1689). Consequently, “Men, being
`once born, have a right to their Preservation.” Id. at
`§ 25. If humanity’s most basic purpose is to live,
`“natural reason” dictates that they must have the
`freedom to do what is necessary to preserve their
`lives. The basic right to life necessarily implies a
`right to defend oneself against enemies or otherwise
`hostile forces. Locke epitomizes this sentiment by
`arguing that one has the right to kill even a petty
`thief in self-defense, since it is impossible to know
`his full intentions at the time.
`
`
`
`3
`
`I. Hawaii’s restriction on carrying firearms in
`certain areas is contrary to the plain language of
`the Second Amendment.
`
`This is apparent from the very language of the
`Second Amendment: “the right of the people to keep
`and bear arms shall not be infringed.” The two
`initial verbs stand out and carry distinct meanings:
`“keep” and “bear.”
`
`The use of the verb “keep” demonstrates that the
`Framers intended to protect the right of the
`individual citizen to own and possess firearms,
`rather than receiving them from an armory only
`when reporting for militia or guard duty. As this
`Court held in District of Columbia v. Heller:
`
`We turn to the phrases “keep arms” and “bear
`arms.” Johnson defined “keep” as, most
`relevantly, “[t]o retain; not to lose,” and “[t]o
`have in custody.” Johnson 1095. Webster
`defined it as “[t]o hold; to retain in one’s power
`or pos session.” No party has apprised us of an
`idiomatic meaning of “keep Arms.” Thus, the
`most natural reading of “keep Arms” in the
`Second Amendment is to “have weapons.” The
`phrase “keep arms” was not prevalent in the
`written documents of the founding period that
`we have found, but there are a few examples,
`all of which favor viewing the right to “keep
`Arms” as an individual right unconnected
`with militia service.
`
`554 U.S. 570, 582 (2008).
`
`The use of the word “bear” reveals that the
`Framers intended that individual citizens were to
`
`
`
`4
`
`have the right to carry their firearms in public.
`Again, as the majority held in Heller:
`
`At the time of the founding, as now, to “bear”
`meant to “carry.” See Johnson 161; Webster;
`T. Sheridan, A Complete Dictionary of the
`English Language (1796); 2 Oxford English
`Dictionary 20 (2d ed. 1989) (hereinafter
`Oxford). When used with “arms,” however,
`the term has a meaning that refers to carrying
`for a particular purpose—confrontation.
`
`Id. at 584.
`
`II. Hawaii’s restriction on carrying firearms is
`contrary to the intent of those who drafted the
`Second Amendment.
`
`The Framers clearly contemplated an individual
`right to keep and bear arms. Consider the following
`statements of leading Americans of the founding era:
`
`Oh, Sir, we should have fine times indeed, if
`to punish tyrants, it were only sufficient to
`assemble the people. Your arms, wherewith
`you could defend yourselves, are gone; and
`you have no longer an aristrocratical; no
`longer a democratical spirit. Did you ever read
`of any revolution in any nation, brought about
`by the punishment of those in power, inflicted
`by those who had no power at all?
`
`Patrick Henry, Speech in the Virginia Ratifying
`Convention (Jun. 5, 1788);
`
`“Whenever governments mean to invade the
`rights and liberties of the people, they always
`attempt to destroy the militia, in order to raise an
`
`
`
`5
`
`army upon their ruins.” Rep. Elbridge Gerry of
`Massachusetts, spoken during floor debate over the
`Second Amendment, Annals of Congress (Aug. 17,
`1789);
`
`A people who would stand fast in their liberty,
`should furnish themselves with weapons
`proper for their defense, and learn the use of
`them. It is indeed an hard case, that those
`who are happy in the blessings of providence,
`and disposed to live peaceably with all men,
`should be obliged to keep up the idea of blood
`and slaughter, and expend their time and
`treasure to acquire the arts and instruments
`of death. But this is a necessity which the
`depravity of human nature has laid upon
`every state. Nor was there ever a people that
`continued, for any considerable time, in the
`enjoyment of liberty, who were not in a
`capacity
`to defend
`themselves against
`invaders, unless they were too poor and
`inconsiderable to tempt an enemy.
`
`Simeon Howard, A Sermon Preached to the Ancient
`and Honorable Artillery Company in Boston (Jun. 7,
`1773);
`
`“For a people who are free, and who mean to
`remain so, a well-organized and armed militia is
`their best security.” Thomas Jefferson, Eighth State
`of the Union Address (1808);
`
`A strong body makes the mind strong. As to
`the species of exercises, I advise the gun.
`While this gives moderate exercise to the
`body,
`it gives boldness, enterprise and
`
`
`
`6
`
`independence to the mind. Games played with
`the ball, and others of that nature, are too
`violent for the body and stamp no character
`on the mind. Let your gun therefore be your
`constant companion of your walks.
`
`Thomas Jefferson, Letter to Peter Carr (Aug. 19,
`1785);
`
`“Always remember that an armed and trained
`militia is the firmest bulwark of republics—that
`without standing armies their liberty can never be
`in danger, nor with large ones safe.” James Madison,
`First Inaugural Address (March 4, 1809);
`
`In a general view, there are very few
`conquests that repay the charge of making
`them, and mankind are pretty well convinced
`that it can never be worth their while to go to
`war for profit sake. If they are made war
`upon,
`their country
`invaded, or
`their
`existence at stake, it is their duty to defend
`and preserve themselves, but in every other
`light and from every other cause is war
`inglorious and detestable.
`
`Thomas Paine, The Crisis (1778);
`
`“A militia, when properly formed, are in fact the
`people themselves . . . and include all men capable of
`bearing arms.” Richard Henry Lee, Letter from the
`Federal Farmer to the Republic (1788);
`
`The militia is the natural defence of a free
`country against sudden foreign invasions,
`domestic
`insurrections,
`and
`domestic
`usurpations of power by rulers. It is against
`
`
`
`7
`
`sound policy for a free people to keep up large
`military establishments and standing armies
`in time of peace, both from the enormous
`expenses, with which they are attended, and
`the facile means, which they afford to
`ambitious and unprincipled rulers, to subvert
`the government, or trample upon the rights of
`the people. The 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.
`
`Justice Joseph Story, Commentaries on the
`Constitution § 1890 (1833);
`
`“That no man shou'd scruple, or hesitate a
`moment to use a[r]ms in defence of so valuable a
`blessing, on which all the good and evil of life
`depends; is clearly my opinion; Yet A[r]ms . . . should
`be the last resource.” George Washington, Letter to
`George Mason (Apr. 5, 1769);
`
`The Constitutions of most of our states assert
`that all power is inherent in the people; that
`they may exercise it by themselves, in all
`cases to which they think themselves
`competent, (as in electing their functionaries
`executive and legislative, and deciding by a
`jury of themselves, both fact and law, in all
`judiciary cases in which any fact is involved)
`or they may act by representatives, freely and
`equally chosen; that it is their right and duty
`
`
`
`8
`
`to be at all times armed; that they are entitled
`to freedom of person; freedom of religion;
`freedom of property; and freedom of the press.
`
`Thomas Jefferson, Letter to John Cartwright (Jun.
`5, 1824);
`
`“The right of self defense never ceases. It is
`among the most sacred, and alike necessary to
`nations and to individuals.” James Monroe, Second
`Annual Message to Congress (Nov. 16, 1818);
`
`[C]onceived it to be the privilege of every
`citizen, and one of his most essential rights, to
`bear arms, and to resist every attack on his
`liberty and property, by whomsoever made.
`The particular States, like private citizens,
`have a right to be armed, and to defend by
`force of arms, their rights, when invaded.
`
`Stephen P. Halbrook, The Founders’ Second
`Amendment 262 (2012) (quoting Roger Sherman,
`Debates on the Militia Act of 1792); and
`
`“That the said Constitution shall never be
`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.”
`Samuel Adams, Debates of the Massachusetts
`Convention of 1788.2
`
`Those who drafted the Second Amendment
`contemplated widespread private ownership and
`
`
`2 In quotations throughout this brief, the original spellings
`have been preserved.
`
`
`
`9
`
`possession of firearms. This is clear from their use of
`the term “militia” as encompassing all able-bodied
`adult males. The Constitution did not create the
`militia; the people have always possessed a natural
`right to organize locally for their mutual defense.
`
`The militia might be said to be a natural
`institution of the people like the family, the state,
`and the church. In the time of the judges of Israel,
`the ancient Hebrews called their army “the people,”
`and it consisted of all able-bodied men with certain
`exemptions
`for
`those who had
`economic
`commitments, a recent marriage, or unmilitary
`qualities. Deuteronomy 20:1–9. As Chaim Herzog
`and Mordecai Gichon state in Battles of the Bible
`(1997) at pages 37, 85–86, and 109: “The military
`organization of the Israelites was, like that of all
`nations emerging from tribal status, based on the
`duty of every able-bodied male to bear arms and
`serve, whenever necessary, in his tribal contingent
`in the national host.” As Israel moved from a
`decentralized confederation of tribes governed by
`judges to a monarchy under Saul, David, and
`Solomon, they began to rely upon a standing
`national army of conscripts instead of a people’s
`militia.
`
`The right to bear arms was the badge of an Anglo-
`Saxon freeman and was closely associated with his
`political privileges. In A.D. 878, King Alfred in
`Anglo-Saxon England gathered the armed citizenry
`into a fyrd or militia to defend against the Danish
`invaders.3 In A.D. 890, the Laws of King Alfred the
`
`
`3 Edward P. Cheyney, A Short History of England 65 (1919).
`
`
`
`10
`
`Great required subjects to possess arms for the
`defense of the kingdom. After the Norman Conquest,
`the Assize of Arms contained a similar requirement
`in A.D. 1181. And § 6 of the Statute of Winchester of
`A.D. 1285 declared,
`
`it is commanded that every man have in his
`house harness [armor] for to keep the peace of
`the ancient assize; that is to say, every man
`between fifteen years of age and sixty years,
`shall be assessed and sworn to armor
`according to the quantity of their lands and
`goods.4
`
`followed a similar
`The American colonies
`practice. The militia of Jamestown Colony was
`organized as early as 1607 and was frequently called
`up
`for military action against the Powatan
`Federation. The Massachusetts colonies organized
`their militias from the beginning of their settlement,
`and in 1636 the Massachusetts General Court
`organized the militias of the various towns into
`three regiments. By the time of the French and
`Indian War in 1760s, the British regulars often used
`colonial militiamen in their military campaigns.
`
`These militia were locally organized and locally
`led, but there were also more broad-based units
`known as “rangers” consisting of men who had
`previous
`fighting
`experience. Each
`colonial
`government organized the various town militias
`within that colony, but there was no pan-colonial
`
`4 G. Adams and H. Stephens, Select Documents of English
`Constitutional History 23–25 (1926).
`
`
`
`
`
`11
`
`force. The idea of cooperation among the colonies
`was, as of that time, a thing of the future.
`
`The War for Independence forced some changes.
`The militias of the various states began to work
`together, and the Continental Congress, for the first
`time, created a continental army with fixed terms of
`enlistment and fixed forms of discipline and
`training. The Massachusetts Legislature directed
`militia commanders to prepare one-third of their
`command to respond instantly to calls for action;
`this one-third became known as the Minute Men (of
`whom Paul Revere was famously a part). Together,
`the Continental Army and the militiamen secured
`American independence. Many colonists praised the
`militiamen for their loyal and selfless service, but
`others said the militiamen lacked the training and
`discipline to stand up to British regulars.
`
`When the Constitutional Convention met in
`1787, they gave considerable attention to matters of
`national defense. They knew the new nation needed
`a military defense, but they also knew a standing
`army could be oppressive. Accordingly, they crafted
`a constitution that balanced the power of the
`national government against that of the state and
`local governments and their militias.
`
`First, Article I, § 8 provides that: “The Congress
`shall have power . . . To raise and support Armies,
`but no Appropriation of Money to that Use shall be
`for a longer Term than two Years;” and that “The
`Congress shall have power . . . To provide and
`maintain a Navy.” Notice the different language.
`Congress is empowered to “raise and support”
`Armies and to “provide and maintain” a Navy, and
`
`
`
`12
`
`the two-year appropriation limit for Armies does not
`apply to the Navy. “Provide and maintain” implies a
`more permanent force than does “raise and support.”
`The Framers apparently believed a permanent
`naval force was necessary, but they believed armies
`should be raised and supported as needed, and in
`peacetime the nation would rely upon the local and
`state militias.
`
`Then, Article I, § 8 of the Constitution addresses
`the militia:
`
`The Congress shall have power . . . To make
`rules for the Government and Regulation of
`the land and naval Forces; To provide for
`calling forth the Militia to execute the Laws
`of the Union, suppress Insurrections and
`repel Invasions; To provide for organizing,
`arming, and disciplining, the Militia, and for
`governing such Part of them as may be
`employed in the Service of the United States,
`reserving to the States respectively, the
`Appointment of
`the Officers, and
`the
`Authority of training the Militia according to
`the discipline prescribed by Congress.
`
`Congress has supervisory authority over the armed
`forces generally, but the authority to train the
`militia and appoint militia officers is reserved to the
`states, provided
`they conduct
`that
`training
`“according to the discipline prescribed by Congress.”
`Congress also has power to provide for calling the
`militia into federal service, meaning that Congress
`can federalize the militia of one or more states or
`pass legislation authorizing the President to call the
`militia into federal service.
`
`
`
`13
`
`All of this ties in with another provision of the
`Constitution that deserves our attention—the
`Second Amendment: “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.”
`
`In 1792, Congress passed the Uniform Militia Act
`to give limited direction to the state militias. Section
`1 of the Act defined militia according to the common
`historic understanding:
`
`That each and every free able-bodied white
`male citizen of the respective states, resident
`therein, who is or shall be of the age of 18
`years, and under the age of 45 years (except
`as is herein after excepted) shall severally and
`respectively be enrolled in the militia by the
`captain or commanding officer of
`the
`company, within whose bounds such citizens
`shall reside, and that within 12 months of the
`passing of this act. … That every citizen so
`enrolled and notified shall, within 6 months
`thereafter, provide himself with a good
`musket or firelock, a sufficient bayonet and
`belt, two spare flints, and a knapsack [etc.] …
`and shall appear so armed, accoutred and
`provided, when called out to exercise, or into
`service . . . and that from and after five years
`from the passing of this Act, all muskets for
`arming the militia as herein required shall of
`bores sufficient for balls of the eighteenth part
`of a pound. And every citizen so enrolled, and
`providing himself with the arms, ammunition
`and accoutrements required as aforesaid,
`
`
`
`14
`
`shall hold the same exempted from all suits,
`distresses, executions or sales, for debt or for
`the payment of taxes.
`
`The definition of the militia as all able-bodied
`male citizens was in keeping with the understanding
`of the time. Noah Webster, in the 1828 edition of his
`American Dictionary of the English Language,
`offered the following definition:
`
`Militia: The body of soldiers in a state enrolled
`for discipline, but not engaged in actual
`service
`except
`in
`emergencies;
`as
`distinguished from regular troops, whose sole
`occupation is war or military service. The
`militia of a country are the able bodied men
`organized into companies, regiments and
`brigades, with officers of all grades, and
`required by law to attend military exercises
`on certain days only, but at other times left to
`pursue their usual occupations.
`
`More recently, Black’s Law Dictionary defines
`militia similarly: “The body of citizens in a state,
`enrolled for discipline as a military force, but not
`engaged in actual service except in emergencies, as
`distinguished from regular troops or a regular army.
`Ex parte McCants, 39 Ala. 112.” 1145 (4th ed. 1968).
`
`And the definition found in the United States Code
`today is similar:
`
`(a) The militia of the United States consists of
`all able-bodied males at least 17 years of age
`and, except as provided in section 313 of title
`32, under 45 years of age who are, or who have
`made a declaration of intention to become,
`
`
`
`15
`
`citizens of the United States and of female
`citizens of the United States who are
`members of the National Guard.
`
`(b) The classes of the militia are
`
`(1) The organized militia, which consists of
`the National Guard and the Naval Militia;
`and
`
`(2) The unorganized militia, which consists of
`the members of the militia who are not
`members of the National Guard or the Naval
`Militia.
`
`10 U.S.C. § 311.
`
`One purpose of the militia is to defend the liberty
`of the people against foreign invaders. Throughout
`history it has worked effectively, and it still works
`today. CDR Robert Menard attended a 1960 meeting
`between US Navy personnel and their Japanese
`counterparts. One American naval officer asked why
`the Japanese did not invade America's west coast. A
`Japanese admiral answered: “We knew that
`probably every second home in your country
`contained firearms. We knew that your country
`actually had state championships
`for private
`citizens shooting military rifles. We were not fools to
`set foot in such quicksand.” Massad Ayoob, The
`Rationale of the Automatic Rifle
`(2001),
`https://www.backwoodshome.com/the-rationale-of-
`the-automatic-rifle/.
`
`But the militia serves another purpose: the
`defense of the people’s liberty against domestic
`tyrants. Lest some think this thought seems radical
`
`
`
`16
`
`and almost subversive, consider James Madison’s
`words in The Federalist No. 46:
`
`Let a regular army, fully equal to the
`resources of the country, be formed; and let it
`be entirely at the devotion of the federal
`government; still it would not be going too far
`to say, that the state governments with the
`people on their side would be able to repel the
`danger. The highest number to which,
`according to the best computation, a standing
`army can be carried in any country, does not
`exceed one hundredth part of the whole
`number of souls; or one twenty-fifth of the
`number able to bear arms. This proportion
`would not yield in the United States an army
`of more than twenty-five or thirty thousand
`men. To these would be opposed a militia
`amounting to near half a million of citizens
`with arms in their hands, officered by men
`chosen from among themselves, fighting for
`their common liberties, and united and
`conducted by governments possessing their
`affections and confidence. It may well be
`doubted whether a militia thus circumstanced
`could ever be conquered by such a proportion
`of regular troops.
`
`(Carey & McClellan eds., 2001).
`
`And Alexander Hamilton, a continental colonel but
`hardly a wild-eyed revolutionary, expressed a
`similar thought in The Federalist No. 29:
`
`Little more can reasonably be aimed at with
`respect to the people at large than to have
`
`
`
`17
`
`them properly armed and equipped. . . . This
`will not only lessen the call for military
`establishments; but if circumstances should
`at any time oblige the government to form an
`army of any magnitude, that army can never
`be formidable to the liberties of the people,
`while there is a large body of citizens, little, if
`at all, inferior to them in discipline and in the
`use of arms, who stand ready to defend their
`rights and those of their fellow citizens.
`
`(Carey & McClellan eds., 2001).
`
`Across both the ocean and millennia, Aristotle would
`have agreed:
`
`[A] king’s body-guard consists of citizens, a
`tyrant’s of foreign mercenaries . . . For those
`who possess and can wield arms are in a
`position to decide whether the constitution is
`to continue or not.5
`
`From the adoption of the Uniform Militia Act of
`1792 through the passage of the Dick Act in 1903,
`militias continued to be a bulwark of the nation’s
`defense. Usually, they were organized locally and
`consisted of men who were mostly friends and
`neighbors of each other, and they commonly elected
`their own officers, although they were subject to
`state regulation. Just before the War Between the
`States, the United States Army consisted of 1,108
`officers and 15,259 enlisted men, but there were
`
`
`5 Stephen P. Halbrook, That Every Man Be Armed: The
`Evolution of a Constitutional Right 7–8 (2013) (quoting
`Aristotle, Politics, § 1301a (350 B.C.)).
`
`
`
`18
`
`thousands of militias, each consisting of about 30 to
`60 men. Quickly after the War began, the Union
`Army swelled to 2,500,000 men, and the Confederate
`Army had 1,000,000. Both sides also relied upon the
`militia units which fought for their respective states.
`
`After the War, the status of discipline of many
`militias gradually declined. In the North, many of
`the militias simply ceased to exist, and in the South,
`they were suppressed by the Reconstruction regime.
`In the 1870s, many states passed new laws requiring
`male citizens to serve in the militias, but these laws
`were poorly enforced and largely ignored.
`
`In 1903, Congress passed the Dick Act. Rep.
`Charles Dick’s bill divided the American adult male
`population, other than those serving on active duty,
`into two categories: (1) the National Guard (the
`organized militia), and (2) the Reserve Militia (the
`unorganized militia, all other able-bodied adult male
`citizens). The 1916 National Defense Act revised the
`Dick Act and provided that
`
`The militia of the United States shall consist
`of all able-bodied male citizens of the United
`States . . . who shall be more than 18 years of
`age and . . . not more than 45 years of age, and
`said militia shall be divided into 3 classes, the
`National Guard, the Naval Militia, and the
`Unorganized militia.
`
`And as federal funding for the Guard increased,
`federal control over the Guard also increased. This
`enhanced the Guard’s ability to respond to domestic
`threats and to defend against foreign enemies when
`called to federal service, but the Guard’s other
`
`
`
`19
`
`traditional function—defending the states and the
`people
`against
`federal
`tyranny—diminished.
`However, numerous states have established state
`guards, often called state militias, state defense
`forces, or state military reserves, pursuant to 32
`U.S.C. § 109, and pursuant to references to the
`“militia” in m
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
