Replies

"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."

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.

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.