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
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
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
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
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