[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?

[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.

[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.

[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).

[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

[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.

[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<

[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.

[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.

[freedomcrusader]

First of all, IT'S ABOUT TIME!!!!! Second, the decision was not released according to the court's usual schedule (12:30pm or 5:00pm Central Time.

I know only what I've read here. For the court to say it's a 2nd Amendment right is fantastic! For them to say that Emerson was not inappropriately deprived of that right is disconcerting, but the explanations provided here make some sense.

The long-term implications are hard to sort out. Until the S.C. decides to weigh in, the second amendment is an individual right in the 5th circuit from here on. That much is for sure.

[41Thunder]

What a major win for the Pro-Gun Community. This is like winning the Super Bowl.

Thanks to the Fifth Circuit Court of Appeals for an outstanding decision and scholarly write-up.

[6ppc]

bump for later

[lepton]

"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."

[Dan from Michigan]

I missed the original post.

From SAF

The decision is finally in. The majority (Garwood wrote, DeMoss signed onto it) found the Second Amendment is an individual right, but reversed and remanded the Emerson case. As expected, Parker in a minority opinion did not want to support the Second Amendment.

Email from Dave LaCourse of SAF

Hi Folks,

Bottom line is that the majority held (more than dicta as an attorney pointed out) that the Second Amendment is in fact an individual right not tied to "militia service".

A huge win for us!!!! Clinton/Gore/Reno government position rejected. But Emerson should appeal the reversal. Will contact his attorneys tomorrow. I am upset that the majority claimed that the tenth amendment issue is dead, especially since a cross appeal by Emerson was denied earlier. What more did he have to try.

Dave

Kudos to SAF for taking the lead on this.

[Frohickey]

e 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.

Whoa! The 5th Circuit just (respectfully) said that the other sister circuits have not been doing their homework and are sloppy.

Woohoo!!!

Anyone have the addresses of these judges. I want to give them each an 'attaboy' letter. Man, these judges can read too. ;)

[freedomcrusader]

Interesting text from the decision:

"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..."