US v Emerson

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

[45Auto]

The United States appeals the district court's dismissal of the indictment of Defendant-Appellee Dr. Timothy Joe Emerson (Emerson) for violating 18 U.S.C. § 922(g)(8)(C)(ii). The district court held that section 922(g)(8)(C)(ii) was unconstitutional on its face under the Second Amendment and as applied to Emerson under the Due Process Clause of the Fifth Amendment. We reverse and remand.

[Henry F. Bowman]

There will be no Supreme Court review of this decision, with respect to the 2nd Amendment.

Emerson won on our issue, so he wouldn't appeal, and the government won on the underlying matter, so they have no reason to appeal.

The USSC does not hear cases to rule whether it agrees with the dicta of lower courts.

[JWinNC]

I would not call this a "Big Victory." I would not it call it a complete loss either. It's good to get some confirmation of the individual right to keep and bear arms, but what good is it if the government can pick and choose who gets to exercise that right?

You have the right, but....

It's a fifty/fifty verdict, but we should take the good part and advance the cause.

JWinNC

[Travis McGee]

bang.

[Triple]

I cannot believe that the interstate commerce aspect, which gives the feds jurisdiction, continues unscathed.

Under this provision, what is excluded from federal regulation?

[45Auto]

The extensive discussion, in dicta, upholds (maybe not the right term) the individual right to keep and bear arms even though one is not a member of an organized militia, and soundly REJECTS the collective rights' or states rights' invention of the enemies of freedom.

[45Auto]

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

[45Auto]

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. Indeed, Emerson does not contend, and the district court did not hold, otherwise. As we have previously noted, it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms.

[Travis McGee]

ping.

[JWinNC]

"The extensive discussion, in dicta, upholds (maybe not the right term) the individual right to keep and bear arms even though one is not a member of an organized militia, and soundly REJECTS the collective rights' or states rights' invention of the enemies of freedom.

That's great, but the decision also seems to say that the right can be limited by whatever means the Federal government chooses. The Federal Government should not have that power.

JWinNC

[TheErnFormerlyKnownAsBig]

Paging all legal help. All lawyers need to check in, as we need help. The Freeperworld needs help just like during the rerererecount.

[Henrietta]

Paging all legal help. All lawyers need to check in, as we need help.

Okay, okay; one lawyer here, ready for duty. What do you need?

[TheErnFormerlyKnownAsBig]

As we have previously noted, it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms.

Ahhhh, that's the problem they need to solve. They just need to figure out how to make us all felons.

[harpseal]

As I interpret this it is a very mixed decision. The Federal Government does have a right to limit the Right to Keep and Bear arms in certain narrowly limited cases but the right is an individual right. I am unsure if I should cheer or cry. I guess and this is a guess on my part the only party who may appeal this decision is Emerson. I seek a legal interpretation.

Stay well - Stay safe - Stay Armed - Yorktown

[Wisconsin]

This is a stunning victory for 2nd Amendment supporters.

It raises, considers with care and dilgence, and ultimately and emphatically rejects every argument I have heard for why the 2nd Amendment does not guarntee and individual right to bear arms.

The only downside is a slight expansion of the general principle that felons can have their rights restricted -- in this case by expanding it to cinlude one whom a court hearing has found is likely to engage in violence.

I think this decision will stand. It will move the battleground from "Is there a right?" to "Under what conditions can the right be restricted". But the balance now is restriction of a fundamental consttitutional right.

A major victory <p<

[ScreamingFist]

"There will be no Supreme Court review of this decision, with respect to the 2nd Amendment."

Thanks Henry, also, I loved that book about you. I was under the impression that that the RKBA advocates WANTED this to go all the way to the supreme court, for a final, last, let's hear it determination, on the right to keep and bear arms. If so, we lost, even though Emerson won. Is my analysis correct?

[Lurking Libertarian]

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

Actually, the court held that the wife's allegations were sufficient only because the divorce court gave Dr. Emerson the chance to deny them, and he didn't.

[July 4th]

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. We remand the cause for further proceedings not inconsistent herewith.

Well, I've only been reading cases for about 6 weeks, but here's what I get out of it.

First of all, this court has no issue with the Second Amendment. They agree that it is an individual right. The important part is simply with the way that the district court argues their way to dismissal.

Because "the question here is sufficient, albeit likely minimally so, to support the deprivation" of the 2nd amendment rights of Emerson, the district court should not have dismissed the indictment.

I don't think the Supreme Court will look at this issue. Emerson's indictment is reinstated, and his case has been "reversed and remanded" back to the trial court for proceedings.

[Devereaux]

Paging all legal help. All lawyers need to check in, as we need help.

And here's another lawyer.

It seems to me that Mr. Emmerson could seek of writ of certiorari (permission to appeal) from the SCOTUS, on the narrow issue which the 5th Circuit decided against him, which is whether or not the District Court was correct that the indictment based on this restraining order was too much of an infringement on 2d Amendment rights.

But the Federal Government can't appeal the language in the dicta that, of course, they don't like.

The government's brief in this case was written under the Clinton Administration, I believe. I wonder how an Ashcroft Justice Deparment would approach the issue?

[lepton]

Moreover, Emerson filled out and signed BATF Form 4473 when, on October 10, 1997, he purchased the Beretta semi-automatic pistol referred to in Count 1. This afforded notice to Emerson that so long as he was under a court order such as that of September 14, 1998, federal law prohibited his continued possession of that weapon.

This is where Emerson conclusively bit it. Also Footnote #7

[lepton]

This footnote#8 is interesting:

Emerson did not contend below, and does not contend on appeal, that the pistol had not traveled in interstate or foreign commerce after the 1994 enactment of the current version of § 922(g)(8). We also note that Emerson's 1997 purchase of the pistol was apparently from a federally licensed firearms leader, although any possible relevance of that to the issue of congressional Commerce Clause power has not been raised by either party here or below. See United States v. Lopez, 2 F.3d 1342, 1348 & n.9 (5th Cir. 1993), affirmed, 115 S.Ct. 1624 (1995). Emerson's Commerce Clause challenge as presented below and on appeal, and the government's and the district court's response thereto, does not address either of those matters, and we do not address either of them. Emerson has not demonstrated error in the district court's denial of his pretrial motion to dismiss under the Commerce Clause.

Even assuming, as we do, that the instant firearm traveled in interstate commerce after the September 1994 enactment of § 922(g)(8), and though we are bound by our prior precedent, it nevertheless appears to us that the founding generation would have regarded as clearly illegitimate any construction of the Commerce Clause which allowed federal prohibition of mere passive, non-commercial, personal possession of a firearm acquired in accordance with federal (as well as state) law which thereafter always remained within the state in which it was acquired.