A Case of the Missing
"Shall Not Infringe"
from Gary Marbut
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 www.mtssa.org.
This initial decision by Judge Sam Cummings is a great read.
You can also get to the initial decision via: http://www.saf.org/1999Emersoncase2amend.html.
Here's my view on the Fifth Circuit decision: MILDLY HOPEFUL, BUT VERY
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
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'
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
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.