Skip to comments.FEDERAL COURT RULES SECOND AMENDMENT IS AN INDIVIDUAL RIGHT!
Posted on 10/17/2001 8:07:34 AM PDT by kimber
16 October, 2001 - The Emerson Case has finally been ruled on by the Fifth District Court of Appeals. What an interesting ruling! Despite Emerson losing his case, it's a definite win for Second Amendment rights. It is unknown at this time whether the ruling will be appealed to the Supreme Court.
First, the court found that Dr. Emerson did not have his rights violated. In a nutshell, the court said Texas law allowed Emerson the opportunity at the original hearing of his divorce proceeding to defend his position. He did not. That isn't the whole ruling, but in the court's opinion, the court does have the right, at an individual level, to remove Second Amendment rights where the plaintiff has legitimate fears of being attacked. Dr. Emerson did not defend his position in his original divorce proceeding when he was accused of threatening the life of another. In a nutshell, he should have. The Federal Appeals Court didn't exactly offer a ringing endorsement for removal of his Second Amendment rights on such a flimsy case, but Emerson did have options that he chose not to exercise.
But this case sets the record straight about what the Second Amendment means. As in the lower court ruling of the Emerson case, the Court of Appeals clearly and without any ambiguity whatsoever, declared the Second Amendment is an individual right, not a collective right or the right of the military or state to keep and bear arms. In a ruling that is as thoughtful and detailed as Judge Sam Cummings' ruling, the court clearly refuted the 1939 Miller case as being erroneous. Additionally, the court made it clear as a bell, without any hesitation, that the Second Amendment confers rights upon the individual to not only keep, but bear arms as well.
This is an exceptionally long ruling replete with historical data in favor of the Second Amendment that would rival only some of the most well researched Second Amendment articles and books. This court clearly knew what it was talking about and took extra pains to make sure that its ruling will not be misinterpreted.
The anti-gun lobby is already spinning this as a victory for them. Sorry to say, it ain't so. The Violence Policy Center even has the audacity to cite the Miller case in its press release as though the court supported it! Wrong again. Here's what the VPC has to say. VPC Press Release
We have provided the short version lifted from the actual ruling. No changes were made to the following segments. They were merely copied and pasted to this page.
The actual court's ruling can be found at:
Court's Summary Conclusion
Error has not been demonstrated in the district court's refusal to dismiss the indictment on commerce clause grounds.
For the reasons stated, we reverse the district court's order granting the motion to dismiss the indictment under the Fifth
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.
Court's Summary Analysis of the Second Amendment and its meaning:
The history we have recounted largely speaks for itself. We briefly summarize. The Anti-Federalists desired a bill of rights,
express provision for increased state power over the militia, and a meaningful express limitation of the power of the federal
government to maintain a standing army. These issues were somewhat interrelated. The prospect of federal power to render
the militia useless and to maintain a large standing army combined with the absence of any specific guarantees of individual
liberty frightened Anti-Federalists. But the Anti-Federalist complaint that resonated best with the people at large was the
lack of a bill of rights.
In mid-1788 the Constitution was ratified unchanged and in the spring of 1789 the Federalists gained control of both houses
of the First Congress. Hard core Anti-Federalists persisted in all three demands, but more moderate Anti-Federalists and the
people at large were primarily focused on securing a bill of rights. Most Federalists were not really averse to a bill of
rights, but, like James Madison himself, had been forced to oppose any modifications to the Constitution since it could only
be ratified unchanged. The Federalists wanted to please the Anti-Federalists as much as possible without fundamentally
altering the balance of federal-state power. James Madison plainly stated this goal when he submitted his proposed
amendments to the House.
Given the political dynamic of the day, the wording of the Second Amendment is exactly what would have been expected.
The Federalists had no qualms with recognizing the individual right of all Americans to keep and bear arms. In fact, as we
have documented, one of the Federalists' favorite 1787-88 talking points on the standing army and federal power over the
militia issues was to remind the Anti-Federalists that the American people were armed and hence could not possibly be
placed in danger by a federal standing army or federal control over the militia. The Second Amendment's preamble
represents a successful attempt, by the Federalists, to further pacify moderate Anti-Federalists without actually conceding
any additional ground, i.e. without limiting the power of the federal government to maintain a standing army or increasing the
power of the states over the militia.
This is not to say that the Second Amendment's preamble was not appropriate or is in any way marginal or lacking in true
significance. Quite the contrary. Absent a citizenry generally keeping and bearing their own private arms, a militia as it was
then thought of could not meaningfully exist. As pointed out by Thomas Cooley, the right of individual Americans to keep,
carry, and acquaint themselves with firearms does indeed promote a well-regulated militia by fostering the development of a
pool of firearms-familiar citizens that could be called upon to serve in the militia. While standing armies are not mentioned
in the preamble, history shows that the reason a well-regulated militia was declared necessary to the security of a free state
was because such a militia would greatly reduce the need for a standing army. Thus, the Second Amendment dealt directly
with one of the Anti-Federalists' concerns and indirectly addressed the other two. While the hard core Anti-Federalists
recognized that the Second Amendment did not assure a well-regulated militia or curtail the federal government's power to
maintain a large standing army, they did not control either branch of Congress (or the presidency) and had to be content with
the right of individuals to keep and bear arms.
Finally, the many newspaper articles and personal letters cited indicate that, at the time, Americans viewed the Second
Amendment as applying to individuals. This is confirmed by the First Congress's rejection of amendments that would have
directly and explicitly addressed the Anti-Federalists' standing army and power over the militia concerns.
We have found no historical evidence that the Second Amendment was intended to convey militia power to the states, limit
the federal government's power to maintain a standing army, or applies only to members of a select militia while on active
duty.(60) All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and
protects individual Americans.
We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual
Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active
military service or training.
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.
How do you figure?
The Court said that the 2nd Amendment was an Individual Right, but more importantly it said that right could be abridged for (nearly) any reason.
I see no victory here. The left will continue to pass laws restricting the use and ownership of firearms.
Thanks for the bump, ol' man.
But we did good enough to shift the terms. Burden of proof used to be on our side, now it's on theirs in the public perception.
Had we had a pure boiler-plate restraining order during routine proceedings, no threat against the wife or new boyfriend, we'd have done better, but this is good enough as a first step.