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News & Editorials

A Case of the Missing "Shall Not Infringe"

from Gary Marbut
Montana Shooting Sports Association

October 17, 2001

The Fifth Circuit court of Appeals has finally rendered the long-awaited decision in the Emerson case. The initial decision of the federal district court is linked in the Archives section of the MSSA Website at This initial decision by Judge Sam Cummings is a great read.

You can also get to the initial decision via:

Here's my view on the Fifth Circuit decision: MILDLY HOPEFUL, BUT VERY DISAPPOINTING!

Many have had their hopes up that the Fifth Circuit would render a decision that would poise for the U.S. Supreme Court the question of whether the Second Amendment protects an individual right to keep and bear arms, or simply assures the states' right to organize militias.

The only good news is that the Fifth Circuit came down squarely on the side of the Second Amendment as an individual right.

However, they followed that by saying that although the SA protects an individual right, it really doesn't have much force, and if Congress wants to abrogate it with a law allowing a court to issue an uncontested injunction in a divorce case stripping a person of their SA rights, that's fully within the power of Congress. And, the Firth Circuit remanded the case back to the district saying the district court made a mistake when it let Emerson off and held that Emerson's SA rights had been violated by an unconstitutional federal law (Lautenberg Amendment).

So, the Fifth Circuit established the RKBA as an individual right, but said that understanding and having such a right doesn't keep government from infringing on it.

I guess I'm a little confused. I always thought that the purpose of the Bill of Rights was expressed in the First Amendment, "Congress shall make no law ...." But, according to the Fifth Circuit, Congress may make any law it wants and the courts will swallow it and allow any depredations on the peoples' rights.

The Fifth Circuit cites with approval William Rawle as having said,

"The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."

But then the Fifth Circuit says,

"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."

Although the word "infringe" is used in the decision 30 times, and although the Court goes to great length to define such terms as "the people", and "keep and bear" and "arms", nowhere does the decision explore the meaning of "shall not infringe".

My first evaluation of this is that it is a political decision, carefully crafted to 1) avoid a civil war over the SA, 2) to surrender no ground to the would-be masters in the federal government, and 3) prevent the matter from coming before the Supreme Court. The Fifth Circuit has effectively jerked the rug out from under the SA, while in the same breath acting like the SA is very explicit.

Yes the SA protects an individual RKBA, and that and 50 cents will get you a cup of coffee.

Read the WorldNetDaily story at:

Read the Fifth Circuit's decision at:

Wish I had better news to report.

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"And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling in terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever else was at hand? [...] The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin's thirst, the cursed machine would have ground to a halt!" —Alexander Solzhenitsyn, The Gulag Archipelago (Chapter 1 "Arrest")

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