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News & Editorials

John Merrett, Attorney, on Emerson Ruling

October 16, 2001

Based on a quick reading of the copy of the decision provided, but with a high degree of confidence, the Emerson case appears to be a victory for human rights, though not for Dr. Emerson. For purposes of Second Amendment jurisprudence, the meat of the opinion is near the end:

"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.

VI. Application to Emerson

The district court held that section 922(g)(8) was unconstitutionally overbroad because it allows second amendment rights to be infringed absent any express judicial finding that the person subject to the order posed a future danger. In other words, the section 922(g)(8) threshold for deprivation of the fundamental right to keep and bear arms is too low.(61)

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.

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. "

The Circuit Court ruled that:

1) The Second Amendment guarantees "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..." [Miller excluded weapons unsuitable for military service, specifically, if memory serves, a rather short-barreled shotgun. The gun owner had presented no evidence below, or else the court would have been forced to at least explain this reasoning in light of the use of short-barreled shotguns in WWI trench warfare.]

2) Even a constitutionally guaranteed individual right may be circumscribed or terminated in accordance with law and due process. In this connection, the Court noted the commonplace disabilities imposed on "felons, infants and those of unsound mind." [As a further example, one has a constitutionally guaranteed right to travel as one pleases and to live where one will; this does not prohibit jail sentences for crimes, civil commitment for the mentally ill, or the exercise of parental authority over minors.]

3) The process (notice and a hearing) afforded Dr. Emerson under Texas law was adequate to support imposition of the disability under federal law. In other words, because the Texas trial court found after a hearing at which Dr. Emerson had the right to present evidence and cross-examine witnesses that he presented a danger to Mrs. Emerson, he was placed within a class of people who may be subjected to constitutional disabilities. [Essentially, the federal statute in question added "people who are or have been subject to domestic violence injunctions" to the "felons, infants and those of unsound mind" list of persons whose constitutional liberties may be limited.]

What did Dr. Emerson do wrong?

He showed up at a hearing on short notice and said he was ready to go forward. He should have asked for a continuance to prepare his case and get a lawyer. In fairness to Dr. Emerson, if he had known about the federal disability, he probably would have done so. He presented no evidence to refute his wife's claims. There is a hint in the opinion that one might even be entitled (because of the potential disability) to appointed counsel:

"There is no evidence that Emerson was unable (financially or otherwise) to retain counsel for the hearing or that he desired representation by counsel on that occasion."

A gun owner served with a petition for a domestic violence injunction should move for a continuance, hire a lawyer or ask for one to be appointed, advise the court that he or she wishes to summon witnesses and to present evidence, and generally demand every procedural protection provided under state law for defendants in civil or criminal actions. It is very common for these proceedings to be set on absurdly short notice (not more than six days for Dr. Emerson, if I read the facts correctly); however, if the responding party doesn't object, the court will proceed.

What does it mean?

In the first place, it lays to rest to the specious claim of the anti-rights crowd that Miller decided that the right protected by the Second Amendment is collective or is a right of governments. Second, Emerson specifically finds that there is an individual federally guaranteed right to keep and bear arms. Third, it makes it clear that this right may only be infringed after due process is afforded. Last, and perhaps most importantly, it holds that the process afforded under Texas law is probably the absolute minimum necessary to pass constitutional muster.

For those of us who are not subject to domestic violence injunctions, the opinion is a clear victory: a federal appellate court has stated in ringing terms that the Second Amendment protects an individual right to keep and bear arms which are appropriate for militia service. This may very well raise interesting questions about extant federal firearms law - particularly the 1986 machine gun ban, the "assault weapons" ban, and the high-capacity magazine ban. Time will tell.


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To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them... Richard Henry Lee

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