Case 3:16-cr-00051-BR

Document 1444

Filed 10/17/16

Page 1 of 5

J. Morgan Philpot (Oregon Bar No. 144811)

Marcus R. Mumford (admitted pro hac vice)
405 South Main, Suite 975
Salt Lake City, UT 84111
(801) 428-2000
morgan@jmphilpot.com
mrm@mumfordpc.com
Attorneys for Defendant Ammon Bundy
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,

Case No. 3:16-cr-00051-BR

Plaintiff,

DEFENDANT AMMON BUNDYS

PROPOSED REVISED JURY
INSTRUCTION REGARDING SECOND
AMENDMENT RIGHTS

v.
AMMON BUNDY, et al,
Defendants.

District Judge Anna J. Brown

At the hearing on Friday, October 14, 2016, the Court challenged Mr. Bundy to find a
jury instruction case as opposed to the Supreme Court case of District of Columbia v. Heller,
554 U.S. 570, 576 (2008), to support his request for further clarification of the Courts Second
Amendment jury instruction.
Going directly to the issue raised by the Court: in United States v. Gilbert, 286 F. Appx
383, 386 (9th Cir. 2008), the Ninth Circuit affirmed a defendants conviction after reviewing de
novo the district courts Second Amendment jury instruction based on [t]he Supreme Courts
recent decision in District of Columbia v. Heller, 554 U.S. --, 128 S. Ct. 2783 (2008).
Accordingly, it was appropriate for Mr. Bundy to likewise cite Heller as legal authority for a
correct statement of the law in his proposed modification to the Courts Second Amendment jury
instruction. In light of Heller, and the facts adduced at trial in this case, the Courts currentlyproposed Second Amendment jury instruction is both confusing and incomplete. That instruction
currently reads as follows:
1

Case 3:16-cr-00051-BR

Document 1444

Filed 10/17/16

Page 2 of 5

Right to Possess Firearms Under the Second Amendment

Under the Second Amendment to the United States Constitution a person has the
right to keep and bear arms, that is to own, to possess, and to carry firearms. As
with First Amendment rights, however, this Second Amendment right is not
absolute and is not a defense to the conspiracy charged in Count One.
Nevertheless, you may consider evidence as to the reasons any Defendant may
have possessed or carried firearms when you consider whether the government
proved any Defendant agreed with another to prevent an officer of the United
States Fish and Wildlife Service and/or Bureau of Land Management from
discharging the duties of his or her office by force, intimidation, or threats.
The Courts First Draft Final Jury Instructions, dated October 4, 2016, at 20-21.
First, this instruction in confusing in how it transitions immediately after introducing the
concept of a persons Second Amendment rights, without any further explanation, to then state
that the Second Amendment is not a defense to the conspiracy charged in Count One. Compare
that transition to the Courts earlier instruction regarding Defendants First Amendment rights,
where the Court begins by clarifying that Defendants political beliefs are not on trial and that
Defendants cannot be convicted based on unpopular beliefs. After explaining that the First
Amendment is not generally a defense to Count 1, the First Amendment instruction goes on to
explain how rights should be considered in context: a defendants speech that merely
encourages others to commit a crime is protected by the First Amendment unless that defendant
intended the speech and expressive conduct to incite an imminent lawless action that was likely
to occur. The Courts current Second Amendment instruction is missing similarly important
context. Accordingly, Mr. Bundy proposes that the Court use the same framework to create
contextual clarity for its Second Amendment instruction as set forth below.
Second, the Courts current Second Amendment instruction is incomplete and potentially
misleading in that it only addresses the Right to Possess Firearms, without including those
rights in the context of militia activity. Here, the government has alleged that Defendants
2

Case 3:16-cr-00051-BR

Document 1444

Filed 10/17/16

Page 3 of 5

association with militia activity in or around Burns, Oregon, and at the Malheur National
Wildlife Refuge is direct and circumstantial evidence of Defendants intent to conspire and to
use force, threat or intimidation. Defendants have countered that argument with a presentation
of evidence showing their conduct was consistent with the right to possess and carry firearms
under the Second Amendment and constitutionally-protected militia-related activity. Thus, Mr.
Bundy proposes the following jury instruction, which sets forth a correct statement of
Defendants Second Amendment rights in the context of this case:
Right To Possess And Carry Firearms And To Participate In Militia Activity
Under The Second Amendment
Defendants rights to possess and carry firearms are not on trial. Under the
Second Amendment to the United States Constitution, a person has the right
to keep and bear arms, that is to own, to possess, and to carry firearms,
including for the purposes of participating in a citizens militia and in case of
confrontation. As with First Amendment rights, however, these Second
Amendment rights are not absolute.
For example, the use of unlawful threats and intimidation and force as
defined in these instructions, are not protected by the Second Amendment.
On the other hand, a defendants possession and use of a firearm and
participation in, or association with, militia activity for the purpose of
resisting tyranny and usurpations of power by the federal government is
protected by the Second Amendment unless that defendant intended his
actions to constitute a deliberate act of force, threat or intimidation against
an officer of the United States in furtherance of the alleged conspiracy
charged in Count One.
Thus, you may consider the intent of a Defendants conduct with a firearm or
participation in militia activity in deciding whether the government proved
beyond a reasonable doubt that any Defendant agreed with another to
prevent an officer of the United States Fish and Wildlife Service and/or
Bureau of Land Management from discharging the duties of his or her office
by force, intimidation, or threats.
This proposed instruction mirrors the Courts instruction on First Amendment rights and
corrects the fact that the prior Second Amendment instruction left out any reference to the
militia. See United States v. Garcia-Rivera, 353 F.3d 788, 792 (9th Cir. 2003) (In reviewing
3

Case 3:16-cr-00051-BR

Document 1444

Filed 10/17/16

Page 4 of 5

jury instructions, the relevant inquiry is whether the instructions as a whole are misleading or
inadequate to guide the jury's deliberation.); see also Heller, 554 U.S. at 635 (The First
Amendment contains the freedom-of-speech guarantee that the people ratified, which included
exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of
extremely unpopular and wrong headed views. The Second Amendment is no different.). Mr.
Bundys instruction correctly states the law as set forth in Heller, where the Supreme Court
recognized the right to keep and bear arms in ones home, as derived from a broader and
uncontroversial right to bear arms in association with a citizens militia acting in response to
federal overreach. In Heller, the majority and the dissent agreed with Justice Storys observation:
The importance of [the Second Amendment] will scarcely be doubted by any
persons who have duly reflected upon the subject. The militia is the natural
defence of a free country against sudden foreign invasions, domestic
insurrections, and domestic usurpations of power by rulers. 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.
Heller, 554 U.S. at 667-68. In fact, the Heller majority endorsed the militias ability to ensure
that the people are better able to resist tyranny, including against both public and private
violence. Id. at 594, 598.
Defendants are entitled to a jury instruction based on the theory of the defense
presented. United States v. Kayser, 488 F.3d 1070, 1073 (9th Cir. 2007) (The legal standard is
generous: a defendant is entitled to an instruction concerning his theory of the case if the theory
is legally sound and evidence in the case makes it applicable.). The instruction above is correct
in explaining that the Second Amendment protects both an individuals right to bear arms, and
his or her right to participate in non-governmental militia activity, including the training and
organization of voluntary citizens. United States v. Emerson, 270 F.3d 203, 234-35 (5th Cir.
4

Case 3:16-cr-00051-BR

Document 1444

Filed 10/17/16

Page 5 of 5

2001) (Plainly, then, a well-regulated Militia refers not to a special or select subset or group
taken out of the militia as a whole but rather to the condition of the militia as a whole, namely
being well disciplined and trained. And, Militia, just like well-regulated Militia, likewise was
understood to be composed of the people generally possessed of arms which they knew how to
use, rather than to refer to some formal military group separate and distinct from the people at
large.). This is fully consistent with the ordinary definition of the militia as all able-bodied
men. Heller, 554 U.S. at 596.
For the reasons presented, Defendant requests a Second Amendment jury instruction as
set forth above, instructing the jury on their rights to possess and carry firearms and to participate
in, or associate with, citizens militia activity.
DATED: October 16, 2016
/s/ Marcus R. Mumford
Marcus R. Mumford
J. Morgan Philpot
Attorneys for Ammon Bundy