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News & Editorials

Justice Garwood for King!

Or how much I love the United States v. Emerson decision

by Ray Pittman, Attorney

October 22, 2001

This week, what is arguably the most important Second Amendment decision was handed down by the Fifth Circuit Court of Appeals in United States v. Emerson. In that case, the court ruled -- in no uncertain terms -- that the Second Amendment recognizes and guarantees the individual right to keep and bear arms and swept aside the Clinton-Reno legal team's stand that it only guaranteed a collective (states) right or the second alternative, "collective lite," something that the court calls a "sophisticated collective right."

The court spent a considerable amount of time discussing the history of the Second Amendment and the beliefs of the framers, both the Federalists and the Anti-Federalists. I haven't done a direct comparison with judge Cummings' discussion of the history of the Second Amendment in his Memorandum decision yet, but it's going to be an interesting exercise.

The court had this observation regarding the collective right argument:

d. Substantive Guarantee as a Whole Taken as a whole, the text of the Second Amendment's substantive guarantee is not suggestive of a collective rights or sophisticated collective rights interpretation, and the implausibility of either such interpretation is enhanced by consideration of the guarantee's placement within the Bill of Rights and the wording of the other articles thereof and of the original Constitution as a whole.

After an extensive look at the history of the Second Amendment, the court ruled,

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.

The court's discussion of the history of the Second Amendment is extensive and compelling. It will, in my opinion, be difficult if not impossible for the Supreme Court to ignore if and when this case ever comes before it. I've visited many of these authors before while arguing against the gun control crowd on the internet. The court has given me some more places to look and to digest. I'm looking forward to it.

Now, turning to the court's refusal to dismiss Dr. Emerson's indictment on Fifth Amendment grounds, I believe that the court was wrong. I'll have to go to the cited cases and read them first, but I fail to see how a right recognized and guaranteed by the Constitution can be abridged by a hearing such as the one that Emerson was subjected to. It's my belief that to abridge such a right requires much more than a hearing in which the burden of proof is merely a preponderance of evidence. I much prefer one where the burden of proof is beyond a reasonable doubt and where there is a jury is the finder of fact, and I think that the framers of the Constitution would agree. I'll leave this issue for the law bar exam committees to put in future bar exams to drive the applicants crazy.

The Lautenberg Amendment under which Dr. Emerson was indicted has a good chance of being trashed by the congress, so it will be interesting to see what happens next. There have been several bills proposed that would repeal the Lautenberg Amendment. I've been looking on both the NRA and GOA sites to see if any of those bills are still in the offing. Senator Smith had one pending at one time, but I don't know what happened to it. I urge all of you to write or email your congresscritters to support any such bill by cosigning it or by introducing one of their own. I drive my congresscritters crazy with the emails that I send them. Emails are good but letters are probably better since they are already written or printed out.

Only Dr. Emerson is likely to appeal in this case, but only on the Fifth Amendment ruling in this case. Attorney General Ashcroft has written a letter to the NRA where he stated that he agrees with the individual right guarantee in the second Amendment, so I don't see the government appealing this decision. The gun control advocates who filed amicus curiae briefs in this case were not parties to the suit and cannot appeal (I can hear Sarah Brady's teeth grinding all the way from her home in Maryland to north Mississippi where I live and it's a lovely sound). If Emerson appeals on the Fifth Amendment ruling, the ruling on the Second Amendment guaranteeing individual rights is not an issue and will not be officially visited by the Supreme Court. They may choose to comment in dicta how they might rule if it does reach the Supreme Court. That could then guide any future decisions in the circuit courts as being persuasive authority.

The court in Emerson recognized that its sister courts have ruled in favor of the collective right being the only right guaranteed by the Second Amendment. Now, I'm an attorney and I can attest that there are plenty of stupid attorneys around. Some of them even think that Dennis Henigan has a clue. In my opinion, Henigan couldn't pour water out of a boot if the instructions were printed on the heel. He seems to have plenty of brothers and sisters on the federal bench.

If either Dr. Emerson or the government doesn't appeal the decision in Emerson, it won't get to the Supreme Court. Dr. Emerson has no reason to appeal this part of the decision since it would jeopardize his appeal of the Fifth Amendment issue and Attorney General Ashcroft has already stated that he believes that the Second Amendment guarantees the individual right to keep and bear arms. The fact that other circuits have ruled differently won't get Emerson to the Supreme Court on this issue until a future ruling in another circuit upholds a collective or collective lite right to keep and bear arms.

In my opinion, this decision is the most important decision handed down by a circuit court of appeals in generations. It doesn't settle the issue, but it's a giant step forward. We can't afford to let our guard down, though. The Sarah Bradys of the world won't give up. We can't either. The enemy is still at the gates.

Related Reading on U.S. v Emerson:

Exposing Lies & Distortions from the Gun Prohibitionists


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