Emerson Petitions SCOTUS: Will the Court Take His Case?

On Target: Newsletter of the Wayland (Mass.) Rod & Gub Club ^ | March 23, 2002 | Jean F. Drew

[betty boop]

On October 16, 2001 a three-judge panel of the Fifth Circuit Court of Appeals handed down its decision in United States v. Emerson. The majority ruled - Judge William Garwood (Reagan appointee) writing, Judge Harold DeMoss, Jr. (Bush I appointee) concurring - the Second Amendment's right to keep and bear firearms refers to a constitutionally protected individual right, not a right of the states to maintain militias. As expected Judge Robert Parker (Clinton appointee), in a minority opinion, basically reiterated the "collective right" interpretation of the Second Amendment (see below).

Notwithstanding the wonderful news, this was a "mixed decision": the Court reversed and remanded the Emerson case back to federal district court for retrial. Although the majority recognized the right to keep and bear arms as a personal right, it was not prepared to concur with the opinion of U.S. District Court Judge Sam Cummings (Reagan appointee) that 18 U.S.C., §922(g)(h) - a federal statute criminalizing possession of firearms while under a restraining order -- is unconstitutional on Fifth Amendment due process grounds.

Some background on this vital case, courtesy of a press release from the Brady Center, formerly Handgun Control, Inc. - which is extremely unhappy with the Fifth Circuit's ruling, now that it's binding federal law within the jurisdictions of Louisiana, Mississippi, and Texas:

"[Dr.] Timothy Joe Emerson was subject to a domestic violence restraining order that required him not to come near his estranged wife or her young daughter, and was therefore prohibited by federal law, 18 U.S.C. §922(g)(8), from possessing a firearm. He was indicted for violating that provision after an incident in which he allegedly threatened his wife with a Beretta pistol and pointed it at her child. Judge Samuel Cummings of the U.S. District Court for the Northern District of Texas dismissed the indictment and ruled that the federal law denying guns to those under restraining orders is an unconstitutional infringement of the Second Amendment."

The Reno Justice department appealed. (Rumor has it Assistant U.S. Attorney William Mateja, who represented the government before the Fifth Circuit, doesn't have much of a future with the Ashcroft Justice department these days: He was expecting a promotion, which he pointedly did not get.)

The "Collective Right" Interpretation
The Brady Center's Dennis Henigan explains the substance of the case Mateja presented on appeal:

"In concluding that the Second Amendment confers an individual right to firearm possession unrelated to militia service, Judge Cummings directly contradicted clear rulings of the U.S. Supreme Court and every other federal and state court that has ever considered the issue. All other courts have unanimously agreed that the Second Amendment's plain language and history confirm its purpose is merely to preserve to the states their security and freedom by means of a well-regulated militia. A number of other federal district and appellate courts have decided Second Amendment cases since Judge Cummings issued his decision in Emerson, and none has followed his misguided lead."

Arguably, this assessment is both tendentious and misleading. David Kopel, law professor, University of Tennessee, rebuts Mr. Henigan's understanding of the matter thusly:

"…United States v. Emerson…recognized that the Second Amendment to the U.S. Constitution guarantees individuals a right to own guns…. It might seem surprising that such a decision would be controversial; polls routinely indicate that a large majority of citizens believe they have a constitutional right to own a gun, and the language of the Second Amendment itself would seem to support that belief. Yet, in the second half of the 20th century, the notion of a right to arms under the Second Amendment got little respect among the chattering classes.

"In the 1960s and 1970s, we were often told that the Second Amendment didn't protect a right of individuals to own guns, but rather only a 'collective right' of the states to have militias…. Like collective property in a Communist country, the 'collective' Second Amendment right belonged to everyone at once in theory, but only to the government in practice, and [this understanding is] thus a nullity - the opposite of a genuine right."

Timothy Joe's Turn to Appeal
Dr. Emerson filed both a petition for rehearing and for rehearing en banc on November 13, 2001, on grounds that the Fifth Circuit's decision was "flawed inasmuch as it is incomplete and applies the incorrect standard for determining whether a statute infringes upon a right of constitutional magnitude. It has long been the case that when a fundamental right has been trod upon by legislative enactment, either by a State or by Congress, the federal judiciary will subject such an enactment to strict scrutiny, allowing it to stand only if: (1) it is narrowly tailored, and (2) serves a compelling governmental interest…. In the case at bar, the Court properly found that the Second Amendment protects an individual right, but despite the Constitutional origin of the right, the Court did not subject 18 U.S.C. §922(g)(8) to strict scrutiny. The Court instead applied a 'reasonable restriction' standard that appears to be akin to the 'rational basis' standard applied to statutes that restrict non-fundamental rights."

The Right and Wrong Way to "Infringe"
Emerson appears to be arguing that the government may not infringe a right of "constitutional magnitude" - the fundamental right to keep and bear personal arms - using prior restraint without a showing of reasonable suspicion or probable cause. No one is arguing that the right to keep and bear arms is an absolute right. But in order for the government to infringe the right, it must do so on a case-by-case basis, and it must have a specific and compelling reason for doing so. On this line of reasoning, a "blanket" restraint of the type represented by 18 U.S.C. §922(g)(8) is facially unconstitutional with respect to the fundamental right it seeks to infringe.

We must not forget that the rights protected in the Bill of Rights are not grants of the federal government. The government did not confer them on us; neither may it take them away from us without compelling reasons and individual due process.

And while we're at it, let's also not forget, the jist of the Emerson dispute and its ramifications historically have been considered matters of compelling state, not federal, interest (e.g., domestic relations, divorce, child protection).

The Fifth Circuit denied both petitions for rehearing on November 30, 2001. So, as expected….

Emerson Turns to a "Higher Authority"
On February 26, 2002, Emerson petitioned the U.S. Supreme Court to review the case.

Will the Supreme Court hear the case? There are two schools of thought on this.

One, no it won't, because the Fifth Circuit didn't find 18 U.S.C., § 922(g)(h) to be unconstitutional, so there's nothing for it to review.

Two, yes it will, because we now have a situation where federal law varies from jurisdiction to jurisdiction. Remember, Circuit Court of Appeals rulings bind only the courts within the Circuit's geographical territory. The Fifth Circuit is only one of ten circuits. In three states the right to keep and bear arms has been found to be a constitutionally grounded and protected personal right; in the other 47, the meaning of the Second Amendment is still up in the air. Only a Supreme Court ruling can provide uniformity of law in all 50 states.

Personally, I have a hunch the Supremes will take this case. But we'll just have to wait and see.

[betty boop]

Hopefully, it's the latter.

Hope so too, L. To base congressional jurisdiction WRT to gun control issues on the "nexus" of firearms and commerce -- that is, any gun or ammunition that had once passed through any stage of interstate commerce is forever after subject to congressional regulation -- strikes me as being an astounding overreach of legislative power. Think about it. Unless you're Amish (maybe not even then), virtually everything you own or some component in it has passed through interstate commerce at some point or other. Does that mean that Congress legitimately can "regulate" ALL our stuff? Well, it appears that it thinks it has the authority to do that, for certainly that's what it's been doing.... To deprive a citizen of the constitutional right to possess a firearm simply because of the congressional construction that "possession in or affecting commerce" constitutionally establishes its jurisdiction, so that it may freely "infringe," is simply nutz. This is tantamount to saying that Congress is free to regulate any product or service that it "doesn't like" if it can establish that the product or service was once subject to an interstate commercial transaction. Talk about giving these ne'er-do-wells carte blanche!

Truly I think the Emerson case is about much, much more than 2A, notwithstanding the critical importance of RKBA in a free society. best, bb.