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U.S. v. Emerson: Celebrate -- With Reservations

By John G. Lankford, J.D.

October 16, 2001

The U.S. Fifth Circuit Court of Appeals' Tuesday ruling in United States v. Emerson, released today, gives proponents of the individual right to keep and bear arms reason to cheer.

But it does not give quite as much as many may think.

The Fifth Circuit said defendant Emerson's right to keep and bear arms is indeed an individual right protected against federal infringement by the Second Amendment to the Constitution -- but that his conviction, under the circumstances his case presents, was not a Constitutionally impermissible infringement. By so holding, it reversed the lower federal District Court's dismissal of charges against him. 

The Fifth Circuit's judgment in the case had been long and anxiously awaited, because it appeared squarely to present the issue whether rights protected by the Second Amendment are those of individuals, individuals only under very restricted circumstances, or states. With its opinion, the Court, strictly speaking, expounded on and then dodged that issue. 

Emerson was charged, under Title 18 United States Code 922(g)(8)(C)(ii), for remaining in possession of his pistol while under a Texas state court order not to annoy or harass his estranged wife. That order had been issued in the process of Emerson's divorce proceedings. On their completion, it was dismissed without having been violated. But while the divorce proceedings were underway, he was charged under the federal statute, which makes it an offense to possess a pistol while under such an injunction. 

The federal District Court dismissed the charge against Emerson, holding his right to keep and bear arms under the Second Amendment would be unlawfully infringed if the federal statute were applied to him, reasoning such application would violate his Fifth Amendment right to due process of law. The prosecutor appealed the dismissal. The Fifth Circuit reversed, agreeing, after an exhaustive analysis of the subject, that the Second Amendment did protect Emerson's personal right to keep and bear arms, but holding that his prosecution under the federal statute, in the particular circumstances presented by the case, would just barely afford him due process of law after all. 

The Difference Between Rationale And Commentary

Evaluation of the import of judicial decisions and their supporting opinions begins with the premise that the narrowest possible meaning, or impact on the law, be attributed to them. In this case, the Fifth Circuit stated that the Second Amendment right to keep and bear arms free of federal infringement was indeed personal rather than one allocated to states, or to individuals only when actually participating in the business of a state-organized militia --now, for all practical purposes, the National Guard.

But, despite the Court's describing its conclusion following its extensive analysis of that issue as a holding, it was in fact obiter dictum, gratuitous commentary, observations on the law not strictly necessary to decide the case. 

The Court held against Mr. Emerson. It reversed the District Court which had dismissed the charge against him. That Court dismissed on the grounds that Mr. Emerson's right to keep and bear arms was personal, and the federal statute under which he was charged could not be allowed to infringe that right under the circumstances his case presented. Reversing, the Fifth Circuit agreed that his Second Amendment right to keep and bear arms was personal, but that, under the circumstances, the federal statute he was held to have violated could Constitutionally incriminate him. 

In other words, the Fifth Circuit could have said, 

"It does not matter whether the Second Amendment protects a personal right of Mr. Emerson's to keep and bear arms. If it does not, the statute may operate and his conviction, if any, would be valid. If it does, under the circumstances presented, the statute does not present a Constitutionally impermissible infringement on that right, and his conviction, if any, would be valid nevertheless." 

A Signal to the Supreme Court

Many who absorb the rationale of the Emerson decision will be angry, offended that what appear minimalistic and legalistic transgressions have been held to suffice to deprive Mr. Emerson of a Constitutional right the Court confesses is his. Their indignation will be similarly inappropriate -- for now. 

The case, as the Fifth Circuit left it, fairly begs for an appeal by Emerson to the United States Supreme Court. The Fifth Circuit indicates a desire not to establish its opinion as federal law only in the states its jurisdiction encompasses, but nationwide. Only by getting its opinion reversed by the United States Supreme Court, specifically on grounds that the case's circumstances do not suffice to deprive Mr. Emerson of his Second Amendment right, can it do so. 

Without, in this brief comment, tracing the fine points involved in that question, that appears to be what the Fifth Circuit has set about doing. Very generally and not all-inclusively, the question whether Emerson's circumstances suffice to allow the federal statute to deprive him of his Second Amendment right addresses itself to a very subtle and nebulous area of the law, that of whether Emerson received due process of law under the Fifth Amendment. An even greater level of complexity is presented by the fact that the answer may involve a maddening doctrine that has borne various labels while inflicting innumerable headaches on lawyers and jurists, but is generally called "substantive due process."

"Substantive due process" asks not only whether a defendant's conviction resulted from application of the pertinent written laws, but also whether those laws are at least minimally fair ones. This is a standard the Supreme Court tends to resolve on a case-by-case basis, its protestations of consistency notwithstanding. Accordingly, it tends to reserve disposition of cases that involve "substantive due process" and are important enough to warrant attention, to its own disposition. Assuming, as it appears, it is eyeing an appeal to the Supreme Court, and hopes its Second Amendment view will be adopted as rationale, not simply obiter dictum, and thus hopes to be reversed on the due-process or "substantive due process" element of the case, the Fifth Circuit rendered an opinion that not only virtually guarantees an appeal by Emerson, but also shrewdly leaves the due-process issue (or substantive-due-process issue) to the Supreme Court, while making a formidable, possibly irrebuttable argument for its (the Fifth Circuit's) view of the Second Amendment's meaning.

Of two close and hard issues, it took the easier and left the harder to be resolved by its superiors. In doing so, however, it virtually begged the Supreme Court for a reversal of its due-process holding. It held that the Texas statutes involved just barely satisfied due process requirements, and even declared itself uneasy with that decision. Indeed, its reasoning included a rather blatant and vulnerable boost to the due-process sufficiency of the statutory scheme: It held that a finding Mr. Emerson must have presented a danger to his estranged wife, or child, or presented them a realistic prospect of danger, must have happened even though it is not recited, because Texas law tells Texas courts not to issue anti-stalking-and-harassment injunctions unless they make such a finding. That is a patent reach, essentially holding that because the Texas court decided as it did, the Texas court must have been right. It was on this shaky point, not the District Court's Second Amendment ground, that the Fifth Circuit reversed -- and invited the Supreme Court to reverse in turn. 

Not For Reliance

At this time, since the Fifth Circuit's Second Amendment rationale is, strictly speaking, obiter dictum rather than rationale dictating the result reached, nobody within the states the Fifth Circuit's jurisdiction encompasses should exercise Second Amendment rights based on the decision. Certainly, no one from other states should do so -- at least, not without precise advice from a competent, licensed attorney at law. But for the moment, advocates of individual rights to keep and bear arms can celebrate a significant academic victory, and wait with patience and much-improved hopes to see whether the Supreme Court will so dispose of the due-process issue as to make it settled law nationwide.

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The best we can hope for concerning the people at large is that they be properly armed. Alexander Hamilton, The Federalist Papers

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