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FEDERAL COURT OF APPEALS: 2ND AMENDMENT PLACES LIMITS ON GUN CONTROL LEGISLATION (Emerson)
FindLaw ^ | Oct. 31, 2001 | Michael C. Dorf

Posted on 10/31/2001 10:39:10 AM PST by berserker

The debate over gun control in the United States is primarily a debate over policy. For many years, however, gun rights advocates have tried to invoke the Constitution as a trump card. The question whether guns should be legal, they say, should not be about aggregate costs and benefits because the Second Amendment settles the issue in favor of gun rights.

The Second Amendment argument has generally received a cool reception in the courts. Former Chief Justice of the United States Warren Burger even went so far as to label it a "fraud on the American public."

Now, however, for the first time, a federal appeals court has come down squarely on the side of those who argue that the Second Amendment right to keep and bear arms restricts the government's authority to enact gun control legislation. Although the court's opinion permits some limits on firearms possession and use — such as laws forbidding ex-felons to carry guns or prohibiting guns on airplanes — it places the burden of justifying these limits on the government. That marks a substantial change from the prior attitude of judicial deference to gun control legislation.

The Emerson Case

The ruling in question is United States v. Emerson, issued by the U.S. Court of Appeals for the Fifth Circuit. Emerson endorsed what the court called the "individual rights model" of the Second Amendment.

The Emerson case originally arose from state court divorce proceedings. In 1998, Dr. Timothy Emerson was ordered by a Texas judge not to threaten or harm his daughter or his estranged wife. (Emerson's ex-wife had testified that he had previously threatened to kill a friend of hers.) A federal statute makes it a crime for a person under such an order to possess a firearm, provided that the firearm affects or has moved in interstate commerce. Shortly after the order was issued, Emerson was indicted by a federal grand jury for possessing a firearm in violation of the statute.

Emerson challenged his indictment on a number of grounds, including the Second Amendment. The federal district court dismissed the indictment. On appeal, the Fifth Circuit reversed, upholding the indictment, because it found that the government had advanced a compelling reason for overriding Emerson's Second Amendment rights.

The court's result meant that it did not really have to reach the question of whether Emerson had Second Amendment rights in the first place. After all, even assuming he did, the court had found the government's interest overrode them. Nonetheless, a majority of the three-judge panel devoted the bulk of its opinion to interpreting the Second Amendment.

Because the majority did not have to reach the Second Amendment question, its analysis technically constitutes what lawyers call dicta — that is, reasoning unnecessary to the disposition of a case. Nevertheless, the majority's opinion could have a substantial impact on the future of gun control in the United States because other courts may follow its reasoning.

Three Second Amendment Models</b<

The Second Amendment states: "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."

The appeals court majority identified three "models" of the Second Amendment. The first and second both emphasize the preamble, or "purpose" clause, of the Amendment — the words "A well regulated Militia, being necessary to the security of a free State." The third does not.

The first model holds that the right to keep and bear arms belongs to the people collectively rather than to individuals, because the right's only purpose is to enable states to maintain a militia; it is not for individuals' benefit. The second model is similar to the first. It holds that the right to keep and bear arms exists only for individuals actively serving in the militia, and then only pursuant to such regulations as may be prescribed.

Under either of the first two models, a private citizen has no right to possess a firearm for personal use. But the court rejected these two models in favor of a third, the individual rights model. Under this third model, the Second Amendment protects a right of individuals to own and possess firearms, much as the First Amendment protects a right of individuals to engage in free speech.

A Key Early Second Amendment Precedent

In endorsing the third, individual rights model, the Fifth Circuit broke ranks with the other federal appeals courts that have addressed the issue, all of which have adopted some variant of the first two models. In a sense, the Fifth Circuit was entitled to differ: Decisions of one circuit court are not binding on other circuit courts, and a Circuit split can always be resolved by the Supreme Court.

But did the Fifth Circuit's analysis violate Supreme Court precedent? That is an issue of greater moment, for Supreme Court precedent is, of course, binding upon the federal courts of appeals.

One important Second Amendment precedent is the 1939 decision of United States v. Miller. There, the Supreme Court rejected a Second Amendment challenge to an indictment for possession of a sawed-off shotgun in violation of federal law. In a terse opinion, the Court concluded: "In the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly 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."

Most courts and many commentators have read Miller as officially adopting the collective right view of the Second Amendment — that is, one of the views set forth in the first or second model that the Fifth Circuit described in its opinion. However, in Emerson, the Fifth Circuit rejected that reading of Miller.

Based on a re-examination of the government's brief in Miller and the language just quoted, the Fifth Circuit concluded that Miller can at least as easily be read to stand for the opposite conclusion: that if a weapon were of the sort that could be used by the military, there would be an individual right to possess that weapon. Thus, a sawed-off shotgun, because it is not a military weapon, falls outside the Second Amendment — but a more "military" weapon would not.

This is a plausible reading of Miller's language, but it has extraordinarily perverse consequences. It would seem to grant the most constitutional protection to just those weapons that are least suitable to private possession, and least likely to be geared toward personal protection alone: distinctly military "arms" such as tanks, attack helicopters, rocket launchers, or even nuclear missiles.

A More Recent Second Amendment Precedent

Perhaps in recognition of this oddity, the Fifth Circuit did not affirmatively rely on Miller, instead only going so far as to say that Miller is not controlling in either direction. But whether even that more limited conclusion is justified is itself subject to doubt, because Supreme Court cases since Miller have read the case as endorsing something like the collective right view.

For example, in a 1980 case, Lewis v. United States, the Court upheld a federal statute prohibiting a convicted felon from possessing firearms. The Lewis Court cited Miller for the proposition that the statute at issue did not "trench upon any constitutionally protected liberties." Significantly, the statute at issue in Lewis applied to all firearms — not just "unmilitary" ones like a sawed-off shotgun. If military-type weapons triggered Second Amendment rights, presumably the Court would have said so in Lewis.

Perhaps the Lewis case is a misreading of Miller, but if so, it is a misreading by the U.S. Supreme Court itself, whose decisions and language are supposed to bind federal appeals courts.

Text and Original Understanding: The Bill Of Individual Rights?

Treating the Emerson case as presenting a question of first impression, the Fifth Circuit opted for the third, individual rights model because it found that approach most consistent with the text and history of the Second Amendment. The Fifth Circuit opinion makes a plausible case for this view. However, the arguments are more balanced than the court acknowledged. Let us consider a few key points.

The Fifth Circuit placed considerable reliance on the text surrounding the Second Amendment. The Amendment sits squarely inside the Bill of Rights, which generally protects individual rights. Moreover, the Amendment protects a right of "the people" — and when that term is used elsewhere in the Constitution, it refers to the people in their individual rather than their collective capacity. Accordingly, the Fifth Circuit thought the Second Amendment also protects an individual right.

Preambles and Purposes

Yet, if one is to look at adjacent text, surely one should start with text that appears within the Second Amendment itself. That takes us to the Second Amendment's arresting preamble, which sets for the amendment's purpose: "A well regulated Militia, being necessary to the security of a free State . . . ." Only one other operative provision of the Constitution contains anything resembling this. Article I, Section 8, Clause 8 gives Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This, of course, is the clause authorizing copyrights and patents.

A preamble invites interpreters to construe the operative text in light of the purposes set forth in the preamble. Yet that is not how the Fifth Circuit proceeded. The Fifth Circuit read the language "keep and bear arms" to refer to individual possession and use of arms. If the "keep and bear" language stood alone, that would be a perfectly appropriate reading. However, once we have been alerted by the Second Amendment's preamble to the fact that the provision has something to do with militias, we may be open to other readings.

Founding Era Documents

Moreover, if one reads Founding Era documents, one finds that the phrase "bear arms" was almost always used to refer to military service. (The interested reader can try this himself or herself by searching for the phrase "bear arms" in the Library of Congress's database of congressional and other documents from the founding era.)

To be sure, one can find the occasional usage suggesting the right is not always related to military service — especially among Pennsylvanians. For example, the Pennsylvania Constitution of 1776 provided, in part: "The people have a right to bear arms for the defense of themselves and the State." Furthermore, as the Fifth Circuit noted, some Pennsylvania Antifederalists would have gone even further, proposing an amendment that stated, in part, "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."

Yet while these uses show that the phrase "bear arms" could be, and sometimes was, adapted to include activities outside of the organized military, they hardly cast doubt on the dominant Founding Era usage.

What about the fact that the Second Amendment protects not merely the right to "bear" but also to "keep" arms? The Fifth Circuit thought that "keep" certainly means "possess." But that is not necessarily correct.

At the Founding, "keep and bear" appears to have been understood as a unitary phrase, like other constitutional terms such as "cruel and unusual" or "necessary and proper." In my own research, I have not come across any documents of the Founding period that treat "keep" as adding a right to private possession distinct from the military notion of arms-bearing.

The Second Amendment in the Twenty-First Century

By making these arguments, I do not mean to suggest that the Fifth Circuit's decision reflects bad historical research. Overall, Emerson is a scholarly opinion that makes a plausible argument. My point, instead, is that a plausible (and in my own view somewhat more convincing) historical case can also be made for something like the collective right model of the Second Amendment.

With plausible historical arguments on both sides, and ambiguous text, what should courts do? Should they convene a panel of eminent historians to decide what the Second Amendment really meant in 1791? That would hardly settle the matter because historians are nearly as quarrelsome a lot as lawyers.

A more productive debate over the Second Amendment's meaning would focus less on how the provision was understood in 1791 and more on how the United States has changed since then.

Consider just one such change: the fact that professional police forces as we know them today were first created in the nineteenth century — long after the Second Amendment was penned and made supreme law. Prior to the emergence of the police, ordinary citizens would bring what arms they had in response to a "hue and cry" or when serving on a posse comitatus. (Think of a sheriff in the old west rounding up a "posse" to bring an outlaw to justice.) If private firearm ownership served as a means of collective self-defense, does the assumption of that function by professionals render the Second Amendment obsolete? Or is the Second Amendment only obsolete in those places where police are effective?

Put another way, do citizens living in high-crime neighborhoods that receive inadequate police services retain a residual right of armed self-defense? Would they still have such a right even if it turned out that they were, in fact, actually subject to greater danger armed than unarmed?

These are not easy questions to answer, but they are only made more difficult by the pretense that we can find the answers if only we look deeply enough into the Eighteenth Century. How to interpret the Second Amendment in the Twenty-First Century is a question that only Twenty-First Century Americans can answer.

See the full article if you want.


TOPICS: Constitution/Conservatism; Miscellaneous
KEYWORDS:
This is intended to influence lawyers & courts. The article also has a link to a discussion board for comments.
1 posted on 10/31/2001 10:39:12 AM PST by berserker
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To: berserker
"Former Chief Justice of the United States Warren Burger even went so far as to label it a "fraud on the American public."

...And I would heartily label Warren Burger a "fraud on the American justice system".

2 posted on 10/31/2001 10:57:36 AM PST by Ranger Drew
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To: berserker
Now, however, for the first time, a federal appeals court has come down squarely on the side of those who argue that the Second Amendment right to keep and bear arms restricts the government's authority to enact gun control legislation.

No it did not. This decision upheld a indictment caused by legislation that was designed to erode our rights small steps at a time.

3 posted on 10/31/2001 11:11:42 AM PST by Double Tap
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To: berserker
Dorf on Guns???? Isn't tht a video?
4 posted on 10/31/2001 11:18:51 AM PST by hobbes1
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To: *bang_list
x
5 posted on 10/31/2001 12:05:55 PM PST by berserker
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To: berserker
Would they still have such a right even if it turned out that they were, in fact, actually subject to greater danger armed than unarmed?

How does Mr. Dork come to such a conclusion out of Emerson? The man is a typical liberal product of current law schools; he has tried his utmost to twist and obfuscate the so-called "meaning of the 2nd Amendment" to fit in with his personal anti-gun bias. He can go to hell. How many liberals does it take to convert a Republic into a mob-rule little "d" democracy? And just how does Mr. Dork propose to disarm 100 million Americans if the ridiculous, late 20th century INVENTION of the collective rights nonsense becomes the prevailing opinion of the SC? How many ways can you spell 'civil war'?

More and more I am convinced that liberalism is a mental disorder.

6 posted on 10/31/2001 12:09:45 PM PST by 45Auto
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To: berserker
In essence, Mr. Dork is trying to do exactly what the 5th Circuit said is nonsense:

In sum, 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.

7 posted on 10/31/2001 12:15:43 PM PST by 45Auto
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To: berserker
One important Second Amendment precedent is the 1939 decision of United States v. Miller. There, the Supreme Court rejected a Second Amendment challenge to an indictment for possession of a sawed-off shotgun in violation of federal law.
No, not really...

In a terse opinion, the Court concluded: "In the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly 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."
The evidence was not before the court because no one showed up to represent Miller! How could the court find in favor of evidence it did not hear? But the clear implication is that the shotgun would have been protected had anyone shown that armies use them.

If military-type weapons triggered Second Amendment rights, presumably the Court would have said so in Lewis.

Perhaps the Lewis case is a misreading of Miller, but if so, it is a misreading by the U.S. Supreme Court itself, whose decisions and language are supposed to bind federal appeals courts.
I want to know who were the majority and how close was this decision. I suspect a political, as opposed to a legal interpretation of Miller in this decision.

8 posted on 10/31/2001 12:28:18 PM PST by MileHi
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To: berserker
A more productive debate over the Second Amendment's meaning would focus less on how the provision was understood in 1791 and more on how the United States has changed since then.

Here's one thing that hasn't changed. Today, as was true in the late 1700's, there are a significant number of individual citizens who keep and bear arms. A goodly percentage of those citizens stand firm in their belief that they keep and bear arms BY RIGHT. The court may rule as it pleases, the historians may revise as they please -- but in the end the people will assert their right to defend themselves from a government that would disarm them and make them victims.

9 posted on 10/31/2001 12:30:22 PM PST by Jolly Rodgers
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To: Jolly Rodgers
Once again a supposed legal 'scholar' can't even get the number of commas in the 2nd Amendment correct.

That pretty much invalidates his entire line of reasoning, such as it is.

L

10 posted on 10/31/2001 12:43:31 PM PST by Lurker
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To: berserker
Ok, I am a lawyer and it is my considered legal opinion that D'ohrf is full of it. He is correct that the decision is probably dicta as to the II Am., however just about everything else he cites or analyzes is flatly, laughably wrong.

If Mr. D'ohrf cared to make these claims in the 5th Circuit he would be summarily thrashed by the opposing side and probably sanctioned by the court. This is as outrageous an example of 'scholarship' (of which there is virtually none here) as I have seen in many a year.

What a hack.

11 posted on 10/31/2001 12:56:24 PM PST by Faeroe
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To: Faeroe
Faeroe wrote: "He is correct that the decision is probably dicta as to the II Am., ..."

I thought that legislation which affects our rights must pass the "compelling interest" test rather than just being rational. This would make the analysis of whether a protected right is involved essential to knowing what level of protection must be incorporated into the legislation at issue; in this case the Lautenberg law prohibiting possession of firearms by those under a restraining order.

12 posted on 10/31/2001 1:18:08 PM PST by William Tell
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To: berserker
bump
13 posted on 10/31/2001 4:21:28 PM PST by Free the USA
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To: berserker
If private firearm ownership served as a means of collective self-defense, does the assumption of that function by professionals render the Second Amendment obsolete?

Straw man...the police have no responsiblity to protect people, and especailly to even show up other than to record the complaint. Their firearms are for their own defense while carrying out their lawful tasks.

14 posted on 10/31/2001 6:04:16 PM PST by lepton
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To: lepton
Bump for an interesting read. He's a moron but it's an interesting discussion.
15 posted on 10/31/2001 10:25:29 PM PST by dcwusmc
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To: berserker
How to interpret the Second Amendment in the Twenty-First Century is a question that only Twenty-First Century Americans can answer.

LOFL !!!
Who is this clown, "Michael Dorf"? The second amendment is short and written in basic English. Take a look at it Michael. Spin it around, hold it up to a mirror, crinkle it up and then flatten it out - - it will still be the same, simple, easy to understand sentence. Interpret..... ha ha ha ha.

16 posted on 10/31/2001 10:37:32 PM PST by Lancey Howard
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Comment #17 Removed by Moderator

To: Lancey Howard; dcwusmc; VW-Cat-Man; Faeroe; Lurker
Who is this clown, "Michael Dorf"?

From the FindLaw author biography:

Michael C. Dorf is Vice Dean and Professor of Law at Columbia University School of Law. His more than twenty scholarly articles have appeared in such journals as the University of Chicago Law Review, the Columbia Law Review, the Harvard Law Review, and the Stanford Law Review. With Laurence H. Tribe, he is the co-author of the book On Reading the Constitution (Harvard University Press, 1991). With Charles F. Sabel, he is currently working on Democratic Experimentalism, a book for Harvard University Press.

Professor Dorf is a graduate of Harvard College and Harvard Law School. He served as a law clerk to Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit in Los Angeles from 1990-1991 and to Justice Anthony M. Kennedy of the United States Supreme Court from 1991-1992. He joined the law faculty of Rutgers University (Camden), in 1992, where he remained until 1995, when he moved to Columbia. Please visit his homepage for more information.


18 posted on 11/01/2001 8:22:38 AM PST by berserker
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To: William Tell
I thought that legislation which affects our rights must pass the "compelling interest" test rather than just being rational.

You mean the "strict scrutiny test": "Whenever it is determined that legislation significantlyinterferes with the exercise of a fundamental right, a court must review the legislation with strict judicial scrutiny, under which the state must demonstrate that the statute serves a compelling state interest, and that the state's objectives could not be achieved by any less restrictive measures." 16A Am. Jur.2d, Constitutional Law § 387. Otherwise the test is the rational relationship to an important government interest. This suggests that the court did not consider the statute to significantly interfere with 2nd Amendment rights.

19 posted on 11/01/2001 9:36:01 AM PST by berserker
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To: berserker
berserker said: "This suggests that the court did not consider the statute to significantly interfere with 2nd Amendment rights."

Thanks for the explanation regarding "strict scrutiny".

Please tell me what is the significance of the fact that the Fifth Circuit "reversed and remanded" rather than just reversed. I thought that this might mean that Judge Cummings gets another shot at the issues. Specifically, is it possible that Judge Cummings can look at the facts, in light of the Fifth Circuits guidance, and perhaps decide that there are reasons for dismissal, not on an absolute Second Amendment ground, but because, as determined now by his court, the "strict scrutiny" standard is not met.

Or to put my question more simply, what is there left for the lower court judge to do? How is this case likely to play out from here?

20 posted on 11/01/2001 11:14:05 AM PST by William Tell
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