US v Emerson

The United States Fifth Circuit Court of Appeals ^ | 16 October 2001 | Judge Garwood

[45Auto]

see link for whole case discussion and decision.

[jimkress]

OK. So what does this mean? What did the court decide to do or not do?

[Travis McGee]

Yeah! What you said!

[45Auto]

"The government steadfastly maintains that the Supreme Court's decision in United States v. Miller, 59 S.Ct. 816 (1939), mandated acceptance of the collective rights or sophisticated collective rights model, and rejection of the individual rights or standard model, as a basis for construction of the Second Amendment. We disagree."

[Lurking Libertarian]

This is not as bad as it sounds. The 5th Circuit did hold-- unlike most other U.S. courts -- that there is an individual right to own guns under the 2nd Amendment. They then held that it is nonetheless constitutional to ban felons or dangerous people from owning guns, and the state court's finding that Emerson had threatened his wife was therefore enough to deprive him of his right to own guns.

What is good about this case is the holding that there is an individual right to own guns; what is even better is that, because the government "won" the case, it cannot appeal to the Supreme Court.

[45Auto]

"These passages from Miller suggest that the militia, the assurance of whose continuation and the rendering possible of whose effectiveness Miller says were purposes of the Second Amendment, referred to the generality of the civilian male inhabitants throughout their lives from teenage years until old age and to their personally keeping their own arms, and not merely to individuals during the time (if any) they might be actively engaged in actual military service or only to those who were members of special or select units." We conclude that Miller does not support the government's collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter it cuts against the government's position. Nor does the government cite any other authority binding on this panel which mandates acceptance of its position in this respect.(21) However, we do not proceed on the assumption that Miller actually accepted an individual rights, as opposed to a collective or sophisticated collective rights, interpretation of the Second Amendment. Thus, Miller itself does not resolve that issue.(22) We turn, therefore, to an analysis of history and wording of the Second Amendment for guidance. In undertaking this analysis, we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment."

[vbmoneyspender]

5th Circuit said that the right to keep and bear arms is not a collective right extended only to those who are part of the militia. Rather, it is an individiual right which one has whether or not they are a member of a militia. The 5th Circuit, however, reversed the district court's dismissal of the indictment against Emerson on Second Amendment grounds. The 5th Circuit allowed the indictment of Emerson to proceed because the restraining order which had issued against Emerson in the context of his divorce provided a sufficient basis under federal law for concluding that Emerson was not allowed to possess weapons.

[earlyapex]

Well, on its face, it appears that the court of appeals has dealt us a bit of a setback, by denying that 2a provides
for an individual right to keep and bear arms. On the other hand, this sets us up for a supreme court appeal, which if
decided in our favor would have much broader application (nationwide rather than within that circuit alone).

Expect the antis to trumpet their latest victories (CA and Emerson) tirelessly. Their shrill call for disarmament
amidst all the evidence to the contrary during the last month alone will be offensive and disouraging.

[45Auto]

"There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words "the people" have a different connotation within the Second Amendment than when employed elsewhere in the Constitution. In fact, the text of the Constitution, as a whole, strongly suggests that the words "the people" have precisely the same meaning within the Second Amendment as without. And, as used throughout the Constitution, "the people" have "rights" and "powers," but federal and state governments only have "powers" or "authority", never "rights."(24) Moreover, the Constitution's text likewise recognizes not only the difference between the "militia" and "the people" but also between the "militia" which has not been "call[ed] forth" and "the militia, when in actual service."(25)

[earlyapex]

Never mind. I seem to have missed the boat on my initial skimming of the decision. $*$(#$ legalese.

[Henry F. Bowman]

D. Second Amendment protects individual rights

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. However, because of our holding that section 922(g)(8), as applied to Emerson, does not infringe his individual rights under the Second Amendment we will not now further elaborate as to the exact scope of all Second Amendment rights.

This means:

Mr. Emerson loses (goes back to the trial court).

The fifth circuit joins on to a pro-rights view that is consistent with logic, without using it in their holding (lawyers refer to this as "dicta", which is of little legal significance, except to telegraph how future decisions will go.)

There can be no appeal to the US Supreme Court on the 2nd amendment issue.

[Anotherpundit]

No, this is a big victory. for us.

We 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.(66) However, for the reasons stated, we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant's Second Amendment rights. Accordingly, we reverse the district court's dismissal of the indictment on Second Amendment grounds.

So, it's a major victory for us, in that it affirms, permanently, clearly, and concisely, an individual right. It's a minor loss in that it says Mr. Emerson could still be (temporarily) denied that right because he'd threatened his wife, despite not having actually done anything physically against her.

[PLMerite]

Whatever.

Get the best military-pattern semi-auto rifle you can afford, learn to shoot it, put away some ammo, and study tactics.

Decide where your line in the sand is, and what you'll do when it is crossed.

That is what will guarantee our rights more than anything else.

[ScreamingFist]

.

[Henrietta]

Chilling. One's right to keep and bear arms can be nullified by the ravings of a vengeful ex-wife. Makes me sick.

[ScreamingFist]

Need someone to interpret the legaleze here. Has this been send to the Supreme Court? I believe that was the hope of the 2nd amendment crowd (of which I am).

[ScreamingFist]

send=sent

[Travis McGee]

Thanks. This is good.

Now, (hypothetically speaking), if one puts a "banned in Kali" AR-15 at sling-arms and marches out to the end of his street in (nest of terrorists) San Diego to protect his neighborhood from attack, will he win?