Emerson Petitions SCOTUS: Will the Court Take His Case?

On October 16, 2001 a three-judge panel of the Fifth Circuit Court of Appeals handed down its decision in United States v. Emerson. The majority ruled - Judge William Garwood (Reagan appointee) writing, Judge Harold DeMoss, Jr. (Bush I appointee) concurring - the Second Amendment's right to keep and bear firearms refers to a constitutionally protected individual right, not a right of the states to maintain militias. As expected Judge Robert Parker (Clinton appointee), in a minority opinion, basically reiterated the "collective right" interpretation of the Second Amendment (see below).

Notwithstanding the wonderful news, this was a "mixed decision": the Court reversed and remanded the Emerson case back to federal district court for retrial. Although the majority recognized the right to keep and bear arms as a personal right, it was not prepared to concur with the opinion of U.S. District Court Judge Sam Cummings (Reagan appointee) that 18 U.S.C., §922(g)(h) - a federal statute criminalizing possession of firearms while under a restraining order -- is unconstitutional on Fifth Amendment due process grounds.

Some background on this vital case, courtesy of a press release from the Brady Center, formerly Handgun Control, Inc. - which is extremely unhappy with the Fifth Circuit's ruling, now that it's binding federal law within the jurisdictions of Louisiana, Mississippi, and Texas:

"[Dr.] Timothy Joe Emerson was subject to a domestic violence restraining order that required him not to come near his estranged wife or her young daughter, and was therefore prohibited by federal law, 18 U.S.C. §922(g)(8), from possessing a firearm. He was indicted for violating that provision after an incident in which he allegedly threatened his wife with a Beretta pistol and pointed it at her child. Judge Samuel Cummings of the U.S. District Court for the Northern District of Texas dismissed the indictment and ruled that the federal law denying guns to those under restraining orders is an unconstitutional infringement of the Second Amendment."

The Reno Justice department appealed. (Rumor has it Assistant U.S. Attorney William Mateja, who represented the government before the Fifth Circuit, doesn't have much of a future with the Ashcroft Justice department these days: He was expecting a promotion, which he pointedly did not get.)

The "Collective Right" Interpretation
The Brady Center's Dennis Henigan explains the substance of the case Mateja presented on appeal:

"In concluding that the Second Amendment confers an individual right to firearm possession unrelated to militia service, Judge Cummings directly contradicted clear rulings of the U.S. Supreme Court and every other federal and state court that has ever considered the issue. All other courts have unanimously agreed that the Second Amendment's plain language and history confirm its purpose is merely to preserve to the states their security and freedom by means of a well-regulated militia. A number of other federal district and appellate courts have decided Second Amendment cases since Judge Cummings issued his decision in Emerson, and none has followed his misguided lead."

Arguably, this assessment is both tendentious and misleading. David Kopel, law professor, University of Tennessee, rebuts Mr. Henigan's understanding of the matter thusly:

"…United States v. Emerson…recognized that the Second Amendment to the U.S. Constitution guarantees individuals a right to own guns…. It might seem surprising that such a decision would be controversial; polls routinely indicate that a large majority of citizens believe they have a constitutional right to own a gun, and the language of the Second Amendment itself would seem to support that belief. Yet, in the second half of the 20th century, the notion of a right to arms under the Second Amendment got little respect among the chattering classes.

"In the 1960s and 1970s, we were often told that the Second Amendment didn't protect a right of individuals to own guns, but rather only a 'collective right' of the states to have militias…. Like collective property in a Communist country, the 'collective' Second Amendment right belonged to everyone at once in theory, but only to the government in practice, and [this understanding is] thus a nullity - the opposite of a genuine right."

Timothy Joe's Turn to Appeal
Dr. Emerson filed both a petition for rehearing and for rehearing en banc on November 13, 2001, on grounds that the Fifth Circuit's decision was "flawed inasmuch as it is incomplete and applies the incorrect standard for determining whether a statute infringes upon a right of constitutional magnitude. It has long been the case that when a fundamental right has been trod upon by legislative enactment, either by a State or by Congress, the federal judiciary will subject such an enactment to strict scrutiny, allowing it to stand only if: (1) it is narrowly tailored, and (2) serves a compelling governmental interest…. In the case at bar, the Court properly found that the Second Amendment protects an individual right, but despite the Constitutional origin of the right, the Court did not subject 18 U.S.C. §922(g)(8) to strict scrutiny. The Court instead applied a 'reasonable restriction' standard that appears to be akin to the 'rational basis' standard applied to statutes that restrict non-fundamental rights."

The Right and Wrong Way to "Infringe"
Emerson appears to be arguing that the government may not infringe a right of "constitutional magnitude" - the fundamental right to keep and bear personal arms - using prior restraint without a showing of reasonable suspicion or probable cause. No one is arguing that the right to keep and bear arms is an absolute right. But in order for the government to infringe the right, it must do so on a case-by-case basis, and it must have a specific and compelling reason for doing so. On this line of reasoning, a "blanket" restraint of the type represented by 18 U.S.C. §922(g)(8) is facially unconstitutional with respect to the fundamental right it seeks to infringe.

We must not forget that the rights protected in the Bill of Rights are not grants of the federal government. The government did not confer them on us; neither may it take them away from us without compelling reasons and individual due process.

And while we're at it, let's also not forget, the jist of the Emerson dispute and its ramifications historically have been considered matters of compelling state, not federal, interest (e.g., domestic relations, divorce, child protection).

The Fifth Circuit denied both petitions for rehearing on November 30, 2001. So, as expected….

Emerson Turns to a "Higher Authority"
On February 26, 2002, Emerson petitioned the U.S. Supreme Court to review the case.

One, no it won't, because the Fifth Circuit didn't find 18 U.S.C., § 922(g)(h) to be unconstitutional, so there's nothing for it to review.

Two, yes it will, because we now have a situation where federal law varies from jurisdiction to jurisdiction. Remember, Circuit Court of Appeals rulings bind only the courts within the Circuit's geographical territory. The Fifth Circuit is only one of ten circuits. In three states the right to keep and bear arms has been found to be a constitutionally grounded and protected personal right; in the other 47, the meaning of the Second Amendment is still up in the air. Only a Supreme Court ruling can provide uniformity of law in all 50 states.

Personally, I have a hunch the Supremes will take this case. But we'll just have to wait and see.

And I'm not sure Emerson is the best case for a test, since its constitutionality is an ancillary variable, not the heart of the contention.

Could you elaborate that point?

I had been under the impression that Emerson had offered two defenses, a 14A due-process defense, in which he says that VAWA offers him no opportunity to dispose of his firearms in an orderly fashion before felonizing him, and the 2A defense which is what the district court went with and Fifth Circuit wound up deliberating for two years. I understand the 2A defense is straightforward, inasmuch as VAWA infringes his 2A rights though he is not a felon and so not impaired. Or did I get that wrong?

The article expressed my misgivings in this statement: the jist of the Emerson dispute and its ramifications historically have been considered matters of compelling state, not federal, interest (e.g., domestic relations, divorce, child protection).

As I see it, that is the core of this case, the domestic abuse complaint. The gun rights issues is secondary to that.

Not that that means the Supreme Court won't hear the case. It's just that I'd like a clearer-cut case of Second Amendment infringement on which to stake a victory.

My sense is that the "fix" was in. By that I mean that the fifth circuit laid out the "individual right" case so thouroughly and then let the Emerson verdict stand on such a thin thread, relatively speaking, that it's almost like they were inducing Emerson to appeal to the SCOTUS. If they had found completely in favor of Emerson, I doubt the government side would have appealed to SCOTUS for a number of reasons.

What I don't have a sense about is whether or not SCOTUS was in on the fix. I don't know if these guys talk to each other that much.

...the fifth circuit laid out the "individual right" case so thouroughly and then let the Emerson verdict stand on such a thin thread, relatively speaking, that it's almost like they were inducing Emerson to appeal to the SCOTUS.

I wondered about that myself, KrisKrinkle. Somehow, though, I don't suspect the Supreme Court was in on a "fix." My sense is they do not correspond face-to-face beyond a few regularly scheduled meetings, though they exchange written correspondence on a very frequent basis (e.g., that's how opinions and dissents get composed, among other things.) And they do "read each other"'s occasional publuc statements. They even socialize -- but not "on-duty."

I get the distinct sense that each of the Justices is jealous of his or her own judicial independence and reputation for integrity. That is, no matter what the Left might want people to believe, the Supreme Court of the United States is highly unlikely to be some sort of nefarious cabal plotting political coups against the American people.

As an illustration of judicial independence, I'm reminded of Ruth Bader Ginsberg's confirmation hearing before the Senate Judiiciary Committee. Senator Feinstein positively grilled her for hints as to how she would handle "politically-sensitive" cases, preeminently "gun control." Judge Ginsberg ditched her six ways to Sunday every time Feinstein came at her. She refused to make any statement whatever characterizing her "judicial philosophy," and expressed mystification as to why Feinstein would be asking her all these hypothetical questions, when a Justice's business is with the real, living world of constitutional jurisprudence -- not with making someone or other's political fantasies come true.

I have admired Ginsberg ever since, for the way she handled herself on what must have been, for her, a critically important day in her distinguished career. I thought she demonstrated character, integrity -- and judicial temperament to a tee.

The best part is, notwithstanding she was a Clinton appointee, the Democrats were forced to vote for her as if she were "a pig in a poke" -- she told them absolutely nothing about how she would rule on cases, if confirmed.

As I recall, she was confirmed by a Republican majority on a full floor vote, with virtually every single Dem on board. And I'm glad she was.

Anyhoot, I'm on tenterhooks, ever since I learned of Emerson's Petition. This case is about ever so much more than simply "gun rights." JMHO FWIW. Thank you, Kris, with all my best, bb.

It's just that I'd like a clearer-cut case of Second Amendment infringement on which to stake a victory.

That would be nice, Iron Jack. But I'd settle for "second-best." To me, that would be establishing with finality in federal law that Bill of Rights liberties are constitutional liberties two times: first, by the Constitution itself; second, by the first Ten Amendments (see its Preamble for the BoR's original intent).

A constitutional liberty recognizes an innate requirement of human existence which precedes the institution of government -- any government. Thus, constitutional liberties may not justly be "infringed" by government, absent a compelling government need, according to due process of law.

To put it another way, a constitutionally founded and protected personal right cannot be lost simply because one has been (politically) relegated to a government-specified group.

I think this is the jist (gist?) of Emerson, boil it all down.

And the feds did step on the toes of the states here, if you ask me. They stepped in, uninvited, and subsumed to themselves certain compelling interests that had formerly been the bailiwick of the states.

Judge Cummings, I gather, did not find any Tenth Amendment implication respecting the nefarious federal statute on which the feds are now trying to convict Dr. Emerson. But if I stretch, I think I do.

In the last analysis, I think Emerson is a Fifth Amendment case. Now RKBA has been firmly established as federal law -- in Texas, Mississippi, and Louisiana.

And so I gather we just have to wait and see what magic this particular constellation of happenstances might work.

So just hope for the best. Myself, I pray a lot these days. Thanks for writing, Iron Jack. All my best, bb.

Are you familiar with Glenn Reynolds, BB? The law professor from UTENN has created quite a sensation as a blogger at his blogspot INSTAPUNDIT. Apparently he is a prominent and nationally known defender of 2nd Amendment rights. He is socially libertarian, however, so be warned. But you might want to drop by his site to pick up info on 2nd Amendment issues that you might otherwise miss. He has been one of the leaders of the onslaught against Michael Belleiles.

In this 2001 article in National Review, Reynolds and Kopel analyze the Emerson case.

Miller was at the very least consistent with an individual right, and certainly did not stand for a collective right.

Thanks for the link, beckett. RE: Miller (1939). This was a case of country-boy-run-amok-moonshiner types got caught by the Treasury Department for operating a clandestine still. It was all about formal paperwork, and the payment of a fee. I gather the boys in West Virginia (?) just didn't get that part.

And little did they know that the personal arms they were bearing at the time were illegal on two counts: No registration/no tax transaction had ever occurred; and their gun barrels had been illegally trimmed.

Oh, there actually was a third count: "interstate commerce."

None of the above matters. The absol;utely, positively fundamental fact remains -- If you can get before the Supreme Court of the United States of America, it is ONLY because you have STANDING in such Court.

People who argue that United States v. Miller was a triumph for the "collective [state's] right" theory of 2A have to explain how Miller -- not then or ever before a member of anybody's state militia, not to mention the buddy he had with him at the time -- got standing before the Supreme Court. SCOTUS only takes constitutional cases where the rules of jurisprudential standing obtain. If it's a 2A case, and a non-militia type gets due process -- at Supreme Court Level no less!!! -- then you got to figure, 2A jurisprudence cannot possibly be confined to the realm of personal service in a militia.

Miller had standing. as a PERSON, as HIMSELF. The Court itself said so, merely by taking his case. End of story.

Good night beckett. Peace and love, bb.

Thanks for the "heads-up" to your excellent analysis, bb, and to you, beckett, for the fabulous links.

The gun buyers "out there" have always behaved as though the 2nd Amendment acknowledged an individual right, thank God, and we have something in excess of 200 million individually owned firearms in this country. This, hopefully, will give some pause to potential invaders, as the wide individual ownership of firearms by the Swiss did the Germans during WWII.

Gun ownership is "a natural" here in the West and I'm both an owner and a holder of a permit to carry (which I very seldom do because I have no wish to give my clients an anxiety attack). I behave as though gun ownership is an individual right because I believe that it is and I will resist any practical effort to disarm me. If the Supreme Court should decide that guns are to be banned, then it is the Supreme Court that is wrong and I will act accordingly.

Guns, like books, are to me a matter of personal empowerment, and by this I mean self-determination, not power over others (which interests me not at all).

Thanks again for the fine post.

May I please have your interpretation of Article IV, Section 2, paragraph 1?

I realize that you asked this of others but my reading is that this paragraph means that the privileges and immunities guaranteed under the constitution will be reciprocal throughout the states of the union. I suggest that this was amplified in Amendment 14, Secton 1 in the equal protections clause.

I have been reading all of your flags betty, even if I do not always reply. I wish for you blessings as we this week commemorate our redemption and the victory of life over death.

BTW did you ever get around to the book by Roger Penrose I suggested ? Best to you, bb.

Thanks, Triple. One of the great mysteries of life, IMHO, is the extent to which the Dennis Henigans et al. of this world -- the gun grabbers -- rely on United States v. Miller (1939). It seems such a slender reed on which to establish a theory of the Second Amendment as a state's right, for three reasons.

First, the standing issue: Miller has it, though he was not then nor ever had been a member of an organized militia. Still the Court was willing to take his case on grounds that his constitutional right to personal arms may have been violated by the Firearms Control Act of 1934.

Second, Miller presented NO oral argument in that case. Apparently, he and his buddy were long gone, back to the hills of West Virginny; I gather his counsel considered him a dead beat, so didn't bother to show up. So Miller's defense was never presented.

Third, the way the Justices ruled, it looks very likely to me that, had they recognized that the firearm he was being penalized for was, in fact, a "military-style firearm," he would have been exonerated. But the justices didn't know their firearms very well, I gather; nor did they appear aware that a firearm of the type that Miller was in possession of -- a short-barreled shotgun -- was issued in vast quantities during World War I. It was called a "trench sweeper," as I recall.

What the Left has done WRT Miller, IMHO, is to read the case selectively, to deliberately "misunderstand it," and then spin it beyond all reasonable sense. Like I said, Miller appears to me to be a very slender and very fragile reed to justify the expropriation of law-abiding gun owners.

Thanks so much for writing, Triple -- it's so nice to see you again. All my best, bb.

...the privileges and immunities guaranteed under the constitution will be reciprocal throughout the states of the union. I suggest that this was amplified in Amendment 14, Secton 1 in the equal protections clause.

Dukie, I wish I'd known you'd replied here before I replied to your private message. I won't reiterate that reply beyond saying that the above is my sense of Article IV, Section 2, paragraph 1, too.

BTW, I went and read your excellent editorial on Pennsylvania's inheritance tax that ran in the Pittsburgh Tribune-Review on March 24th. Congratulations on an extremely well-conceived, well-reasoned, and well-written piece! Did you post it here at FR? Wish you would if you haven't! It's got lots of stuff in it I could get really "exercised" about, especially this silly notion that an inheritance tax is "justified" on "social equity" principles to break up intergenerational concentrations of wealth.... Looks to me like the Penn. inheritance tax is a tad irrational, as you ably demonstrate.

Thanks for writing, Dukie. All my very best, bb.

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