Memo: Summary of Emerson
Date: 10/19/2001
UNITED STATES v. EMERSON,
270 F.3d 203 (5th Cir. 2001).
U.S. Court of Appeals for 5th Circuit, Oct. 16, 2001
SUMMARY OF 5th CIRCUIT's DECISION
NON-SECOND AMENDMENT ISSUES
The court rejected a statutory construction argument because the
language was plain and it would have involved rewriting the
statute; it
rejected the due process Fifth Amendment claim because Dr.
Emerson
received notice and appeared at the hearing; it rejected the
commerce
clause claim because the statute has a requirement that the
firearm or
ammunition be shipped or transported in interstate or foreign
commerce
or that the possession be in or affecting commerce; it rejected
the
Tenth Amendment claim because it was abandoned on appeal. The
court
then discussed the Second Amendment claim.
SECOND AMENDMENT ISSUE
Three Views Examined by the 5th Circuit
The court noted that courts and commentators have offered what
may
fairly be characterized as three different interpretations of the
Second
Amendment. The first is that the Second
Amendment does not apply to
individuals; rather, it merely recognizes the right of a state to
arm
its militia. This "states' rights" or
"collective rights" interpretation
of the Second Amendment, as the court noted, has been
embraced by several U.S. Court of Appeals Circuits.
The second model admits that the Second
Amendment recognizes some
limited species of individual right. This supposedly
"individual" right
to bear arms, however, may be exercised only by members of a
functioning, organized state militia who bear the arms while and
as a
part of actively participating in the organized militia's
activities.
Under this theory, the "individual" right to keep arms
applies only to
members of a militia, and then only if the federal and state
governments
fail to provide the firearms necessary for such militia service.
At
present, virtually the only such organized and actively
functioning
militia is the National Guard, and this has been the case under
law.
Currently, the federal government provides the necessary
implements of
warfare, including firearms, to the National Guard, and this is
likewise
historical. Under this model, the Second Amendment poses no
obstacle to
the wholesale disarmament of the American people. The court noted
that a
number of U.S. Court of Appeals Circuits have accepted this
model,
sometimes referred to by commentators as the
"sophisticated collective
rights" model.
Noteworthy, in its appeal to the 5th Circuit, for reversal of
lower
court's Judge Cummings' decision, the U.S. Justice Department
abandoned
the states' rights model and advocated the sophisticated
collective
rights model.
The third model simply recognizes the Second
Amendment right of
individuals to keep and bear arms. This view was advanced by
Emerson and
adopted by the district court. None of the other circuits has
subscribed
to this model the court said, known by commentators as the
individual
rights model or the standard model. The court
acknowledged the
individual rights view has enjoyed considerable academic
endorsement,
especially in the last two decades.
Second Amendment Guarantees an Individual Right to Keep and
Bear Arms
The court examined the text of the Second Amendment and concluded
that,
taken as a whole, the text of the Second Amendment's substantive
guarantee is not suggestive of a collective rights or
sophisticated
collective rights interpretation. It said the implausibility of
either
such interpretation is enhanced by consideration of the
guarantee's
placement within the Bill of Rights and the wording of the other
articles thereof and of the original Constitution as a whole.
Turning to the history of the Second Amendment's adoption, the
court
found nothing inconsistent with the conclusion that, as
ultimately
proposed by Congress and ratified by the states, it was
understood and
intended in accordance with the individual rights model as set
out
above.
The court stated:
"We find that the
history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training." |
The court examined the preamble and harmonized it with the
substantive
right. In sum, it held that, to give the Second Amendment's
preamble its
full and proper due, there is no need to torture the meaning of
its
substantive guarantee into the collective rights or sophisticated
collective rights model which is so plainly inconsistent with the
substantive guarantee's text, its placement within the bill of
rights
and the wording of the other articles thereof and of the original
constitution as a whole. If the people were disarmed there could
be no
militia (well-regulated or otherwise) as it was then understood.
That
expresses the proper understanding of the relationship between
the
Second Amendment's preamble and its substantive guarantee.
The court examined United States v. Miller, 307 U.S.
174, 59 S.Ct. 816
(1939). It held:
"We reject the
collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller." |
The court further noted: "There is no contention here
that the Beretta
pistol possessed is a kind or type of weapon that is neither 'any
part
of the ordinary military equipment' nor such "that its use
could
contribute to the common defense" within the language of Miller
(nor
that it is otherwise within the kind or type of weapon embraced
in the
government's second Miller argument, e.g., 'weapons
which can have no
legitimate use in the hands of private individuals' so as to be
categorically excluded from the scope of the Second Amendment
under
Miller's holding)."
Regulation of Right to Arms and Second Amendment
The court noted:
"Although, as we
have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." |
This standard, at a minimum,
requires that any law that
seeks to regulate the right to keep and bear arms must be
subjected to heightened scrutiny.
The court then examined the domestic violence restraining order
statute
and Texas law. The court opined that "it is clear to us that
Texas law
meets these general minimum standards. See, e.g., Texas
Indus. Gas v.
Phoenix Metallurgical, 828 S.W.2d 529, 532 (Tex. App.-Hou.
[1st Dist.]
1992):
"A trial court may not issue a temporary injunction except
to prevent a
threatened injury. . . . The commission of the act to be enjoined
must
be more than just speculative, and the injury that flows from the
act
must be more than just conjectural. . . . The trial court will
abuse its
discretion if it grants a temporary injunction when the evidence
does
not clearly establish that the applicant is threatened with an
actual,
irreparable injury."
The court further noted that "[m]oreover, such orders are
subject to
being set aside by the issuing court as well as being subject to
some
review by an appellate court. In such a case, we conclude that
the nexus
between firearm possession by the party so enjoined and the
threat of
lawless violence, is sufficient, though likely barely so, to
support the
deprivation, while the order remains in effect, of the enjoined
party's
Second Amendment right to keep and bear arms, and that this is so
even
though the party enjoined may not collaterally attack the
particular
predicate order in the section 922(g)(8) prosecution, at least so
long
as the order, as here, is not so transparently invalid as to have
only a
frivolous pretense to validity."
The court closed by stating that
"[w]e agree with
the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia." |
SPECIAL CONCURRING OPINION
Judge Robert M. Parker specially concurred in the result, saying
that
all references to the Second amendment are dicta and unnecessary
to the
opinion. This is a bizarre position, since the U.S. District
Court used
the Second Amendment to void the statute. Consequently, the Court
of
Appeals was compelled to address the meaning of the Second
Amendment.
The majority rejected his bizarre view: "We reject the
special
concurrence's impassioned criticism of our reaching the issue of
whether
the Second Amendment's right to keep and bear arms is an
individual
right. That precise issue was decided by the district court and
was
briefed and argued by both parties in this court and in the
district
court." The majority also stated "[w]e likewise reject
the implied
criticism (in the special concurrence's fourth paragraph) for not
mentioning certain 'facts' not alleged in the indictment, not
found to
be true by any trier of fact, and not relevant to the section
922(g)(8)
violation alleged. The district court dismissed the indictment
and
Emerson has not yet been convicted of anything. In fact, we have
been
informed that he has been acquitted of state charges relating to
the
matter mentioned in the special concurrence."
INCORPORATION OF SECOND AMENDMENT
THROUGH FOURTEENTH AMENDMENT
This case had nothing to do with state action, therefore, the
Fourteenth
Amendment was not an issue. The court, however, examined some
cases
holding that the Second Amendment does not apply to the states.
The
court noted that "these holdings all came well before the
Supreme Court
began the process of incorporating certain provisions of the
first eight
amendments into the Due Process Clause of the Fourteenth
Amendment, and
as they ultimately rest on a rationale equally applicable to all
those
amendments, none of them establishes any principle governing any
of the
issues now before us." Therefore, the issue of incorporation
can be
raised in an appropriate case.
COURT CRITICIZES INTELLECTUAL BANKRUPTCY
OF STATE COURTS
The court did not just reject federal court rulings that
judicially
nullified the Second Amendment, it also criticized state courts:
"We
also observe that to interpret state constitutional provision
protecting
the right of the citizen or the people to 'bear arms' as applying
only
where the individual is actively engaged in actual military
service is
necessarily to either (1) contemplate actual military service for
that
purpose as including military service other than that which is
ordered
or directed by the government; or (2) construe the constitutional
provision as saying no more than that the citizen has a right to
do that
which the state orders him to do and thus neither grants the
citizen any
right nor in any way restricts the power of the state. Of course,
the
latter difficulty is especially applicable to the theory that
such state
constitutional provisions grant rights only to the state. While
two (and
only two) state courts (both in the twentieth century) have
seemingly
adopted that view, those two decisions do not appear to even
recognize,
much less attempt to justify, the anomaly of construing a
constitutional
declaration of rights as conferring rights only on the state
which had
them anyway. See City of Salina v. Blaksley, 72 Kan.
230, 83 P. 619
(Kan. 1905) (in prosecution for carrying a pistol within city
limits
while intoxicated, construing bill of rights provision 'that the
people
have the right to bear arms for their defense and security' as
one which
'refers to the people as a collective body' and which 'deals
exclusively
with the military. Individual rights are not considered in this
section.'); Commonwealth v. Davis, 343 N.E.2d 847 (Mass.
1976) (in
prosecution for possession of shotgun with barrel less than 18
inches
long, provision of § 17 of bill of rights that 'the people have
a right
to keep and bear arms for the common defense' is 'not directed to
guaranteeing individual ownership or possession of weapons;'
while a
'law forbidding the keeping by individuals of arms that were used
in the
militia service might then have interfered with the effectiveness
of the
militia and thus offended the art. 17 right . . . that situation
no
longer exists; our militia, of which the backbone is the National
Guard,
is now equipped and supported by public funds.')." The court
concluded
that these two bizarre cases rest on an intellectual foundation
made of
quick sand.
CONCLUSION
The impact of the opinion in United States v. Emerson,
270 F.3d 203
(5th Cir. Oct. 16, 2001), on the anti-self-defense and anti-gun
movement
must be devastating. It also demonstrates that the intellectual
movement
in support of this right, including the writing of numerous law
review
articles, which the court cited, strongly influenced this court.
This is a case of the pen saving the sword.
For the underlying case, CLICK HERE: |
For a related court opinion, CLICK HERE: |
For a primer on the 2nd Amendment, CLICK HERE: |