US v Emerson

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

[DGallandro]

Very very Chilling. Says something about choosing your spouse very, very carefully in this modern age.

Especially when your very livelihood hinges upon your right to keep and bear arms.

Something to think about before you hop into her bed or say "I Do."

David

[JCG]

If the court has handed down a sentence and I complete that sentence (time served, parole, etc), I have "paid
my debt to society" and it would (or maybe I should say "should") take another hearing or trial in order to restrict my rights. In fact, if I remember correctly, there is even case law on something similar.

It would be nice if any of this were true, but it isn't.  The existing law is the rule, not what we'd like the law to be.  If the law is (as it is in Missouri) that felons can't have guns that's the way it is.  As for "paying a debt to society" -- that ain't law either.  The phrase is used all the time but it has no basis in law.

[ctdonath2]

Hold that thought. We may have a comparable (if not better) case in progress already: the football player caught with a Bushmaster in his car. AR-15, innocent setting, high-profile, LOTS of money for legal defense. May someone with influence tell him to run with this ball, all the way to the goal. He has the advantage of "being someone" and did not do it just to make a point.

[KirkandBurke]

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.

Of course, nowadays, anything can be a felony and everyday a zealous prosecutor or legislator is seeking to add another "felony statute." "Dangerous people?" Well, that could be anyone. Just give the prosecutors & spinmeisters a little room and girl scouts will become the sourge of the earth, who should be banned from ever owning a firearm for life. Way too much wiggle room in these "opinions." I'm still looking for that "felons & dangerous people" clause in the Constitution or that other clause that says when one is excommunicated from "the people." I always thought a citizen was a citizen was a citizen. Maybe a citizen isn't always a citizen? Maybe the government will eventually declare us all dangerous felons? Step by step, with reasonable sounding arguments, they erode our liberty. At least they recognized an individual's right to keep and bear arms. I guess that's something. Now they need to define who a citizen is and isn't.

[dpwiener]

I don't know if Robinson is "the case", but it does have some fine attributes.

I would think that the best approach would be a clean test case, within the 5th Circuit boundaries, for violating some existing federal law (maybe Brady or some portion of the 1968 Gun Act). Presumably either a lower court or the 5th Circuit Court would then use the Emerson holding to invalidate that (portion of the) law as a violation of the 2nd Amendment. At that point the federal government could either appeal to the U.S. Supreme Court, or else someone in another District who was convicted of that law could appeal to the USSC. The USSC would almost be forced to take up the issue to resolve the conflict.

Assuming the USSC substantially adopted the Emerson holding regarding the 2nd Amendment being an individual right, numerous federal firearms laws would immediately be invalidated or be sharply limited. At that point a new test case against some state gun-control law could be appealed to the federal courts (preferably within the 5th District), as a lead-in to Incorporation. And if the USSC ultimately incorporated the 2nd Amendment via the 14th Amendment, a huge array of state gun-control laws would come tumbling down.

[AKbear]

Oh, I agree with you that it's not that way any more, but that is the way it is supposed to be. Too many "law and order" types got those kinds of things changed to suit what their idea of justice should be. Consequently, we have what is laughingly called the criminal justice system that we have today.

[Travis McGee]

Let me digest that, "IANAL"

[TheErnFormerlyKnownAsBig]

Our Freeper lawyers have been checking in and CWW says pretty much what everyone else has been saying we win, Emerson loses (his appeal looks dismal), and the chances of going to SCOTUS on appeal are nil.

He also ran it by his buddy, a high flying legal superman who agrees.

[Travis McGee]

Can't Emerson appeal the arbitrary blanket nature of the "boilerplate" restraining order being used to deny his rights?

[monkeyshine]

In the summary atop this thread (post #1) it says that the district court threw it out on 2nd and 5th Amendment grounds. What reason does the court give for overruling and remanding the case on 5th amendment grounds?

[TheErnFormerlyKnownAsBig]

Unless I got the timeline wrong, he did threaten someone and the for the 5th (I assume) that was enough as to not worry them about prior restraint.

So it will be up to a jury to decide if he did in fact have the gun. I'm no lawyer, but it seems like saying you didn't know you were breaking the fed. law after you get the restr. order because, A. the ATF form didn't have that warning when I signed it, or B. I checked "no" so I didn't flip it over and see 3 b. that said if you checked yes you couldn't have a firearm or C. I just plain didn't know the law, doesn't work so well.

His options are severely limited.

[Pitchfork]

The 5th circut's ruling is a double-edged sword for 2nd Ammendment advocates at best. While it rejects the collectivist interpretation in favor of a individual rights reading of the ammendment, it explicitly notes (as did the dissenting opinion) that, like all rights, the right to bear arms is sujbect to reasonable limitations in the public interest.

Moreover, the opinion is rooted in US v. Miller, a case which AFFIRMED the federal government's ability to regulate civilian access to military style weapons in the interest of public safety. To begin to say that the ruling will tear down the assault weapons ban is to ignore this fact.

Moreover, limitations on individual rights particularly with regard to obscenity, have long relied on the application of 'prevailing community standards'. There is nothing to indicate that, with regard to gun ownership, prevailing community standards will not similarly obtain. Therefore California or NY state law limiting certain firearms will not be repealed simply because there are communities with more open laws (case in point Utah's pornography laws).

Even if the 5th circut's opinion was to become the law of the land (and it is still a long way from that) state or local governments would still be able to restrict access to certain weapons.

However, and thankfully, the ruling does hint at certain maximum limits on the power of federal or local governments to limit weapon ownership. It would clearly be unreasonable to prohibit ALL weapon ownership. So, long rifles and shotguns with recreational purposes as well as handguns which are clearly for self-defense are safe from restriction and confiscation.

[monkeyshine]

the opinion is rooted in US v. Miller, a case which AFFIRMED the federal government's ability to regulate civilian access to military style weapons in the interest of public safety.

This is exactly the opposite of the 5th circuit's opinion of Miller. From the link at the source:

We believe it is entirely clear that the Supreme Court decided Miller on the basis of the government's second argument-that a "shotgun having a barrel of less than eighteen inches in length" as stated in the National Firearms Act is not (or cannot merely be assumed to be) one of the "Arms" which the Second Amendment prohibits infringement of the right of the people to keep and bear-and not on the basis of the government's first argument (that the Second Amendment protects the right of the people to keep and bear no character of "arms" when not borne in actual, active service in the militia or some other military organization provided for by law"). Miller expresses its holding, as follows:

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' 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. Aymette v. State of Tennessee, 2 Humph., Tenn. 154, 158." Id. at 818.

Clearly this court thinks Miller was trying to determine whether a particular weapon had a military utility -- in which case the weapon would be 'protected' from legislation, and not as you stated that the government was 'Affrimed' in regulating them.

Please read the brief at the link. They have a whole section on what they think Miller was about.

[Pitchfork]

You're right. Miller allows only non-militia weapons to be regulated and therefore the whole of the 5th circut's assertion about a individual right turns on the definition of what consitutes a militia or 'the people'. Oddly the ruling makes little mention of past cases that have defined the militia as the national gaurd--I wonder how they can do that?

However, a full reading of the Circut's ruling (including the concurring--but disenting--opinion) leaves me less sanguine. As Parker notes, the majority's assertion of an individual right to bear arms is completely hollow because even after the extensive justification of the validity of thier legal reasoning, the presence of a constitutional right appears insufficient to set aside even a boilerplate court order! My GOD! If a second amendment right to bear arms exist as they say it does, it must be among the weakest of those enumerated in the bill of rights! No such a restriction on speech, religion or the press would be tolerated. As eroded as the 4th amendment protections have been lately, they still stand tall compared with this sickly second amendment. As it stands, no 'reasonable' gun regulation is threatened even slightly!

[ctdonath2]

It's the next court that counts, and whether this is dicta depends on what that court holds, not this one.

Not quite. The RKBA conclusions in this case ARE NOT dicta, they are central to the final ruling. The 5th Circuit concluded that Emerson's RKBA right _could_ be suspended via due process - and to suspend the right requires that there be a right to suspend. They had to make it absolutely clear (not dicta, but central finding) that the 2nd Amendment guarantees an individuals RKBA, _then_ they made it clear that such Constitutional rights may, under limited due process conditions, be suspended. If the finding was mere dicta, there would not have been a right to suspend.

The next court, be it USSC or the original court (to which the case has been remanded), can only address the "due process" issue. The RKBA issue is settled: the plantiff (feds) cannot appeal the issue to the USSC because they won this round, the plantiff cannot raise the issue again in the lower court because a higher court settled the issue, the defendant cannot appeal the issue to the USSC because the 5th Circuit agreed with him (he can only quibble with the "due process" part), and the defendant cannot raise it in the lower court because the 5th Circuit agreed with both the defendant and lower court.

In the 5th Circuit's jurisdiction, the RKBA is SETTLED. The way to get RKBA to the USSC is to raise the same question in a different jurisdiction and get an equal court to differ with the 5th Circuit, causing an equal-protection rift that could only be settled by the next court up: USSC. May Robinson go there with his squeaky-clean well-funded case - and may he do it soon.

[ctdonath2]

Fear not. The 5th Circuit has separated two issues, clarified one (RKBA is _individual_), and polished up the other (due process suspention of rights) for appeal. While not quite as satisfying now, they've prepared things for a much better solution.

[ctdonath2]

the opinion is rooted in US v. Miller, a case which AFFIRMED the federal government's ability to regulate civilian access to military style weapons in the interest of public safety. To begin to say that the ruling will tear down the assault weapons ban is to ignore this fact.

Not quite. Miller affirmed the fed's ability to regulate access to NON-military weapons. If Miller had demonstrated that a sawed-off shotgun was useful for military use, the court would have ruled he had a right to it. (Unfortunately, by that point Miller was dead.)

[monkeyshine]

Yes, I agree a lot with your assessment. A boilerplate order should not withstand the test of 'reasonableness' with regard to enumerated rights or any other right for that matter. Yet In this particular case, with threats on the record by credible witnesses (the police) that he would commit violence against his wife and/or her boyfriend, I think that a finding of fact would have been warranted and that the state would probably prevail.

It is complicated, because there was no finding of fact. However, it is clear to everyone that Emerson was wrong for saying what he said, and that is what sunk him the most. The court cannot say that the freedom of speech includes the right to make murderous threats, and it cannot allow a person who makes murderous threats to go scott free. Temporarily taking his weapons in this instance was probably justified, although as I said I am not satisfied that it was done in a Constitutionally correct manner.

A boilerplate order should not be enough to strip him of his rights. The court should have made this point, but didn't. I suspect, and hope, that Emerson will continue to appeal the case on these grounds. However, the end result was IMHO correct in that he should have been temporarily stripped of his rights because of his threats. That is what makes this so complicated. The courts need to clear it up. The state needs a court order to search your home, stating the time, places to be searched, and reason for the search. The state should need to do something similar if they wanted to take away his 2nd Amendment rights.

[aaaDOC]

Statement by NRA Chief Lobbyist, James J. Baker, On the Decision by the 5th Circuit Court of Appeals

The National Rifle Association (NRA) is gratified by the decision of the 5th Circuit Court of Appeals that clearly reaffirms the accurate interpretation of the Second Amendment; that it protects the right of individuals to privately possess and bear their own firearms.

This is clear corroboration of what reputable historians and constitutional scholars have said consistently; that the Second Amendment, like other rights, is an individual right designed to protect rights of the people, not to expand the powers of government. The Court’s clear rejection of “collective rights” theories should put an end to further politically charged efforts by special interest groups to undermine the clear intent of our founders as expressed in the Bill of Rights.

The Emerson case represented the culmination of years of efforts by the Clinton-Gore Administration to undermine Americans’ Second Amendment rights. When the Clinton Justice Department argued in the 5th Circuit that there is no individual right, we took that argument to America’s millions of gun owners to underscore the stakes of Election 2000. And they denied Al Gore the White House because of it.

Now, our client -- the Second Amendment -- has had its day in court. And the Second Amendment has emerged victorious as well. NRA members and all of America’s law-abiding gun owners can be equally proud of this victory as they were in helping elect a pro-Second Amendment President and Vice-President last November.

Read the court's decision

Read about the decision