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How U.S. v. Emerson
Impacts Texas Gun Owners

March 3, 2004

by Donald Ray Burger, Attorney at Law

(713) 880-2000

© 2004

It will be of little avail to the people,
that the laws are made
by men of their own choice,
if the laws be so voluminous
that they cannot be read,
or so incoherent
that they cannot be understood.

James Truslow Adams
The Adams Family, 1930


On October 20, 1997, Dr. Timothy Emerson, a physician in San Angelo, Texas, purchased a 9mm Beretta, Model 92F, from a business selling guns. Approximately one year later, on August 28, 1998, Sacha Emerson, Dr. Emerson's wife, filed a petition for divorce in state district court for Tom Green County, Texas.

On September 4, 1998 the Judge held a hearing for entry of "Temporary Orders," as is standard family practice in Texas. Sacha Emerson appeared with her attorney. Dr. Emerson appeared without an attorney.

Testimony was received at the hearing and the Judge entered "Temporary Orders" of the standard type entered in Texas family law cases.

On November 16, 1998, Sacha Emerson and the Emerson's four-years old daughter visited Dr. Emerson at his office. According to Sacha Emerson, Dr. Emerson pulled the Beretta on her and pointed it at her and the child. (A trial on this incident was held in state court, and, on October 16, 2001, Dr. Emerson was found "not guilty" of these acts by a jury.)

On December 8, 1998, a Federal Grand Jury indicted Dr. Emerson for violation of 18 USC§ 922(g)(8), which prohibits possession of a firearm or ammunition while there is a particular type of injunction in effect. Dr. Emerson's attorney moved to quash the indictment, and the U.S. District Court dismissed the indictment as violating the Fifth Amendment and the Second Amendment rights of Dr. Emerson. The government appealed to the Fifth Circuit. This is the story of U.S. v. Emerson.

The actual language of 18 U.S.C. § 922(g)(8) is:

(g) It shall be unlawful for any person–

(8) who is subject to a court order that–

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C) (i)includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii)by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The Divorce Case

The Temporary Orders issued in the divorce action in District Court of Tom Green County, Texas, followed the normal form language seen in most Texas family law cases.

1. The Temporary Orders first set out who was the managing conservator of “the child.”

2. The Temporary Orders are so “form” that “the child” was not even named in the body of the orders.

3. “Tim Emerson” was named possessory conservator of “the child.”

4. Next was the section on child support. $1,000 per month, in two $500 payments.

5. Next, who got the 1996 Ford Explorer (Sacha).

6. Next was the temporary injunction, listing 22 things “Respondent” [Dr. Emerson] was enjoined from doing.

First, was no obscene language.

Second was no threats, in person or by phone, to take "unlawful action.”

Third was no phone calls at “unreasonable hours.”

Fourth–at last–was no intentional or reckless bodily injury to “Petitioner” or “a child”— neither of who are mentioned by name.

Fifth was no threats of “imminent bodily injury.”

Out of the next seventeen items, sixteen addressed conserving the money estate of the couple. The other item, weirdly, enjoined Dr. Emerson from “opening or diverting mail addressed to either party.” This would appear to prevent him from opening his own mail!

So, all told, all but six of the twenty-two items addressed conserving the community estate.

There was also a “warning to Parties” about the consequences of violating a temporary order–but no mention is made of possession of firearms or ammunition.

The Court concluded with a “Standard Possession Order” under Section 14.033 of the Texas Family Code. That order sets out when Tim Emerson can see “the child.” He was given visitation on the first, third and fifth weekends, on Wednesday evenings, on certain holidays and for certain summer months. There was no warning that the court was fearful of Dr. Emerson seeing “the child.” Further, the order specifically provides that Dr. Emerson was to pick up “the child” at the residence of Sacha Emerson and to surrender possession of “the child” at the residence of Tim Emerson. The court was thus insuring that the couple would have many face-to-face meetings when they exchanged “the child.”

Decisions from the Courts

The District Court decision is found at 46 F. Supp. 2d 598.
The Fifth Circuit decision is found at 270 F. 3d 203.
The U.S. Supreme Court denied certiori at 536 U.S. 122.
A quote from the District Court decision would be: U.S. v. Emerson, 46 F. Supp.2d 598 (N.D. Tex. 1999), rev'd, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 122 (2002).
A quote from the Fifth Circuit decision would be: U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 122 (2002).


Doctor Timothy Emerson was indicted for violating 18 U.S.C. § 922(g)(8).

He moved to dismiss the indictment based on the theory that 18 U.S.C. § 922(g)(8) was unconstitutional under the Commerce Clause, the Tenth Amendment, the Fifth Amendment and the Second Amendment.

Commerce Clause

Emerson contended that the indictment should be dismissed because § 922(g)(8) was an unconstitutional exercise of power by Congress under the commerce clause.

Emerson cited U.S. v. Lopez, 514 U.S. 549 (1995)— a US Supreme Court case that held Congress could not declare schools “weapons-free” zones because the law did not regulate interstate commercial activity, and was thus not within the power of the federal government.

The district court rejected Emerson's theory, citing the Fifth Circuit decision in U.S. v. Pierson, 139 F.3d 501 (5th Cir. 1998), which held that § 922(g)(8) is not an unconstitutional exercise of the commerce power.

Not surprisingly, the Fifth Circuit also rejected Emerson’s argument that § 922(g)(8) was an unconstitutional exercise of the commerce power.

Tenth Amendment Claim

Emerson contended that the indictment against him should be dismissed because § 922(g)(8) violates the Tenth Amendment.

The Tenth Amendment reads:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The district court rejected this theory. The district court said that Tenth Amendment issues are resolved in one of two ways. First, the court inquires whether the Act of Congress is authorized under Article I of the Constitution. Second, the court determines whether the Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment.

Under the first test, the act is constitutional because the Fifth Circuit had held that 18 U.S.C. § 922(g)(8) is a valid exercise of the commerce power in U.S. v. Pierson. A U.S. District Court in Texas is bound by that decision.

Under the second test, § 922(g)(8) is constitutional because it does not implicate the Tenth Amendment in the way Congress did when it passed the Brady Act. The Supreme Court, in Printz v. U.S., 521 U.S. 898 (1997), held the Brady Act violated the Tenth Amendment because Congress commandeered state law enforcement officers to perform background checks on prospective handgun owners. Congress cannot “impress into its service— and at no cost to itself— the police officers of the 50 states.” Id. at 922. Here, in contrast, “the law does not command state activity in support of it,” so the Act passes muster under the second Tenth Amendment test.

Because Dr. Emerson did not raise the rejection of his Tenth Amendment claim in his brief to the Fifth Circuit, so the Fifth Circuit treated it as abandoned.

Fifth Amendment Claim

Emerson contended that the indictment against him should be dismissed because § 922(g)(8) violates the Fifth Amendment.

The Fifth Amendment, among other things, prohibits the government from depriving an individual of “life, liberty, or property, without due process of law.”

The district court noted that:

(1) firearm possession is a valuable liberty interest.

(2) liberty interests are protected under the Fifth Amendment.

(3) The district court then quoted Chief Judge Posner, in dissent, in U.S. v. Wilson, 159 F.3d 280, 293 (7th Cir. 1998):

"It is wrong to convict a person of a crime if he had no reason to believe
that the act for which he was convicted was a crime, or even that it was
wrongful. This is one of the bedrock principles of American law. It lies
at the heart of any civilized system of law."

The district court continued by making the distinction between conduct that is malum prohibitum, and conduct that is malum in se.

Conduct that is malum prohibitum (a wrong prohibited) is unlawful because a statute mandates that the conduct is prohibited.

Conduct that is malum in se (a wrong in itself) is inherently immoral (murder, theft or fraud). One does not need a statute to know that murder, theft or fraud is wrong.

However, 18 U.S.C. § 922(g)(8) does not address the sort of thing that in inherently wrong. The district court concluded that Dr. Emerson’s conduct was unlawful merely because the statute made it so.

At 46 F. Supp. page 612, the district court addressed the dilemma between the maxim “ignorance of the law is no excuse” and the “inherent unreasonableness of criminal prosecutions involving obscure violations of the law.” Clearly, one does not have to read a statute to know that murder is wrong. On the other hand, statutes often criminalize conduct one might not think was illegal if one was not aware of the statute. The district court again quoted Chief Judge Posner, in dissent, in U.S. v. Wilson, 159 F.3d 280, 295 (7th Cir. 1998):

"We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn’t mean being able to go to a local law library and read Title 18. It would be preposterous to suppose that someone from [the defendant’s] milieu is able to take advantage of such an opportunity. If none of the conditions that make it reasonable to dispense with proof of knowledge of the law is present, then to intone “ignorance of the law is no defense” is to condone a violation of fundamental principles for the sake of a modest economy in the administration of criminal justice."

The district court was concerned because § 922(g)(8) has no mens rea requirement.

Mens rea is the requirement for a guilty mind, or criminal intent, as an element of a crime. One must mentally mean to commit the crime before one can be found guilty. Criminal intent is an element of the crime and, thus, of guilt.

The U.S. Supreme Court addressed this issue in Lambert v. California, 355 U.S. 184 (1998). There, a Los Angeles municipal ordinance made it a crime for a convicted felon to remain in the city for more than five days without registering. Mrs. Lambert, a convicted felon, failed to register. The Supreme Court held that the ordinance violated due process when applied to a person who had no notice of the law requiring a duty to report. The Supreme Court did hold that the State can eliminate the requirement of mens rea, but, because such a law would be an exception to “the principles of Anglo-American criminal jurisprudence,” the courts demand an indication that the legislative body meant “ such a fundamental departure from longstanding principles of criminal law” before eliminating the mens rea requirement.

The district court applied the above principles and concluded that §922(g)(8) violated the due process rights under the Fifth Amendment:

"Due process requires some adequate, meaningful form of a fair warning or notice to a respondent to a protective order that he will be committing a crime if he possesses a firearm.

"Because § 922(g)(8) is an obscure, highly technical statute with no mens rea requirement, it violates Emerson’s Fifth Amendment due process rights to be subject to prosecution without proof of knowledge that he was violating the statute."

46 F. Supp at 613.

The Fifth Circuit did not agree with the district court’s analysis.

First, the Fifth Circuit noted that the Supreme Court decision in Lambert has been restricted, “lest it swallow the general rule that ignorance of the law is no excuse,” citing its own decision in U.S. v. Giles, 640 F.2d 621, 628 (5th Cir. 1981) (holding that a § 922(h) prohibition against felons owning firearms does not violate due process).

Next, the Fifth Circuit addressed the mens rea issue. The Court noted that § 922(g)(8) requires a “knowing violation.” However, the knowledge required is not that there is a statute one is violating. Rather, there must be “knowledge” that one possesses a firearm. Because Dr. Emerson knew he possessed a Beretta, he had sufficient mens rea, in the opinion of the Fifth Circuit, to satisfy the Fifth Amendment’s due process “notice” requirements.

Further, the Fifth Circuit said that, in October of 1997, when Dr. Emerson filled out the BATF Form 4473 to purchase the Beretta in question, the form “afforded notice to Emerson that so long as he was under a court order such as that of September 14, 1998, federal law prohibited his continued possession of that weapon.” Emerson at 216.

The actual wording on the four pages of Form 4473 a gun buyer reads has changed throughout the years. The current version (effective as of October, 2001) differs in significant ways from the one Dr. Emerson faced. It states, “I understand that a person who answers ‘yes’ to any of the questions 12b through 12k is prohibited from purchasing or receiving a firearm.” “Important Notice 7” claims that under § 922 “firearms may not be sold to or received by persons subject to a court order” of the type Dr. Emerson faced. This is a misstatement of the law by the BATF because § 922(g)(8) prohibits “possession” of a firearm or ammunition, not just “purchasing or receiving a firearm.”

The version of Form 4473 Dr. Emerson faced (effective as of April 1997) did contain language stating that a person subject to a court order restraining one “from harassing, stalking or threatening an intimate partner or child of such partner” was “prohibited from purchasing or possessing a firearm.”

However, several important facts must be considered. First, there is no carbon copy of Form 4473 to give to a gun purchaser, so purchasers do not walk away with a copy of the form. Secondly, when Dr. Emerson filled out the form in October of 1997, he was not subject of any restraining order. The Fifth Circuit held he should have remembered that a section of a four page document that did not apply to him in 1997 might apply some day, and he should remember the warning. A problem with this argument is that the question on restraining orders has its own WARNING section, and refers one to “Important Notice 4 " on the reverse side of the form. Anyone reading “Important Notice 4" would not find, in its eleven lines of fine print, any prohibition against possessing a firearm after being subject to a restraining order. What is prohibited is selling or receiving firearms. In other words, the very form used by the Fifth Circuit to defeat Dr. Emerson’s claim that § 922(g)(8) violates his Fifth Amendment rights contains a misstatement of the law and would lead anyone who remembered that bit of the fine print to believe all a restraining order does is stop one from buying or sell guns, an act for which Dr. Emerson was not accused.

How sad that the Fifth Circuit did not rely on the axiom of law that the specific controls over the general and hold that the specific warning Dr. Emerson was directed to when he encounter the question on restraining orders (“Important Notice 4” ) controlled over the general warning of the effect of “yes” answers to questions 8b through 8k.

Be that as it may, the Fifth Circuit concluded that the Lambert defense was not available to Dr. Emerson because of the actual notice afforded him in BATF Form 4473.

Second Amendment Claim

Emerson contended that the indictment against him should be dismissed because § 922(g)(8) violates his Second Amendment rights.

The Second Amendment reads:

"A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed."

This claim involves two issues:

(1) Does Dr. Emerson have Second Amendment rights; and

(2) if so, does § 922(g)(8) violate them?

Judge Sam Cummings of the U.S. District Court, Northern Division of Texas, San Angelo Division, answered both question “yes.” The district court decision made the news, and especially made news among proponents and opponents of the Second Amendment. The government appealed to the Fifth Circuit, and these special interest groups geared up for the battle.

Amicus Curiae Briefs
(Friend of the Court)

Someone with no right to appear as a litigant, but who is allowed to introduce arguments and authorities to protect his interests files what is known as an amicus curiae brief. Many such briefs were filed at the Fifth Circuit in the Emerson case.

Organizations filing amicus curiae briefs in favor of the Clinton Administration’s position that the Second Amendment does not grant a right to keep and bear arms to individuals were:

Center to Prevent Handgun Violence, Federal Law Enforcement Officers Ass’n International Ass’n of Chiefs of Police, International Brotherhood of Police Organizations, Legal Community Against Gun Violence, Major Cities Chiefs, National Ass’n of Police Organizations, National Black Police Ass’n, National Ass’n of Black Law Enforcement Executives, Police Executive Research Forum, Police Foundation, Hispanic American Police Command Officers Ass’n Educational Fund to End Handgun Violence


Pro Second Amendment Amicus briefs were filed by:

Texas Justice Foundation, Independence Institute, Law Enforcement Alliance of America, Inc. Gun Owners Foundation, Texas State Rifle Ass’n, Second Amendment Foundation, Independent Women’s Forum, Doctors for Responsible Gun Ownership, National Rifle Ass’n of America, Congress of Racial Equality, Inc., Academics of the Second Amendment, Citizen Committee for the Right to Keep and Bear Arms, Women Against Gun Control, Southern States Police Benevolent Ass’n, Jews for the Preservation of Firearm Ownership.


The district court said there are two main schools of thought on the Second Amendment, the individual rights model and the collective rights model. The Fifth Circuit said there are three.

(1) The individual rights model.

(2) The states’ rights or collective rights model;

(3) The sophisticated collective rights or militia model–a variant of the collective rights theory that says individuals can own guns only so long as the state or federal government fails to provide arms;

The Fifth Circuit noted that theories (2) and (3) have been adopted by other circuits, but no circuit has adopted the individual rights model–although most legal scholars support it.

Stare Decisis and U.S. v. Miller

The Fifth Circuit first considered whether the U.S. Supreme Court adopted the “collective rights” model in U.S. v. Miller, 307 U.S. 174 (1939). U.S. v. Miller was decided in 1939. Miller was arrested for not having the proper stamped permit for his firearm, a Steven double barrel shotgun. Not having that stamp was a violation of the National Firearms Act of 1934. This was not just any stamp. It was a $200 stamp required for any shotgun having a barrel less than 18" in length.

The Act was framed as a revenue raising act. Congress, so it said, was not trying to control guns, it was raising money! Mr. Miller got himself a smart lawyer, and that lawyer convinced a district court in Arkansas that the National Firearms Act violated the Second Amendment rights of Mr. Miller because its true purpose was to control firearms, not raise money.

The government appealed directly to the U.S. Supreme Court.

The first thing you need to know about the Supreme Court decision is that no lawyer appeared for Mr. Miller. No brief. No oral argument. This presented a big problem to the Court. There was no brief on behalf of Mr. Miller to rebut the government’s brief. No one to answer questions from the Court. An empty chair.

Not surprisingly, the Supreme Court ruled in favor of the government. The Court held:

"In the absence of any evidence tending to show that possession of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

Miller at 178.

The next five pages contain various historical quotes about the use of the term “militia” and the case concludes with the simple statement that, “We are unable to accept the conclusion of the court below and the challenged judgment must be reversed.”

The quote at page 178 indicates that the Court might have ruled differently if there was some evidence. The section about judicial notice supports this. A court can take judicial notice of many things in the absence of evidence introduced in court. For example, a court might take judicial notice that Houston is in Harris County, Texas. However, the facts of which a court may take judicial notice are extremely limited. Whether sawed-off shotguns are used in the military is not something of which the Court felt it could take judicial notice. Because no one contradicted the government’s position that such weapons were not ordinary military equipment, that position was uncontradicted, and the Court could not use the device of judicial notice to defeat the government’s assertion.

As an aside, some read the Miller decision as saying an individual can own weapons of the kind the military uses, but not a sawed-off shotguns, because the military does not use sawed-off shotguns. It is interesting to think what the Miller court would have thought of the Assault Weapons Ban.

The Fifth Circuit read the Miller decision as turning on the issue of whether sawed-off shotguns were used in the military. The Fifth Circuit quotes a section of the government’s brief in Miller as asserting that it is “indisputable that Congress was striking not at weapons intended for legitimate use but at weapons which form the arsenal of the gangster and the desperado.” The government’s brief in Miller further noted that “the cases are unanimous in holding that the term ‘arms’ as used in constitutional provisions refers only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals.” See Emerson at 222.

The Fifth Circuit decided that Miller was decided on the narrow grounds that sawed off shotguns were not ordinary military equipment, and not on whether the Second Amendment grants an individual right to keep and bear arms. Because the Fifth Circuit determined that the Supreme Court did not decide Miller on the basis of whether the Second Amendment does or does not grant an individual right, the case was not stare decisis. The Fifth Circuit then turned to an analysis of the wording of the Second Amendment itself.

The Second Amendment reads:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The People

Under the collective rights theory “people” must be read as though it were “States.”

A well regulated Militia, being necessary to the security of a free State, the right of the [people] States to keep and bear Arms, shall not be infringed.

Under the sophisticated collective rights model “people” must be read as “members of a select militia.

A well regulated Militia, being necessary to the security of a free State, the right of the [people] members of a select militia to keep and bear Arms, shall not be infringed.

Only under the individual rights model is the meaning of “people” the same in the Second Amendment as it is used in the First Amendment and the Fourth Amendment. The First Amendment protects “the right of the people to peaceably assemble and to petition the Government for a redress of grievances.” The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures....” The Ninth and Tenth Amendments also mention rights of the people. It is clear that in none of these other references to “the people,” does the Bill of Rights mean “the states.” “People” means individuals.

The Fifth Circuit also pointed out that only the “people” have "rights" under the wording of the Constitution. When the Constitution refers to the federal government and state governments, those entities have “powers” and “authority” but never “rights.” Thus, the Second Amendment’s reference to “the right of the people” should be read to mean individuals, and not states.

Bear Arms

Collective rights theorists argue that the phrase “bear arms” only applies to members of the select militia carrying weapons during actual militia service. In support of this reading the collective rights theorists cite various state constitutional provisions allowing a conscientious objector to be excused from military service (bearing arms) upon payment of money for someone else to take his place.

However, the Fifth Circuit noted that the constitutions of at least ten states refer to the right of “people” or citizens to bear arms to defend themselves—and not in connection with militias. The Fifth Circuit concluded that the phrase “bear arms” refers to the carrying or wearing of arms, and not just to militias.

Keep Arms

The Fifth Circuit noted that “neither the government nor amici argue that ‘keep . . . arms’ commands a military connotation. The plain meaning of the right of the people to keep arms is that it is an individual, rather than a collective, right and is not limited to keeping arms while engaged in active military service or as a member of a select militia such as the National Guard.” Emerson at 232.

Effect of Preamble

What were the Founding Fathers thinking when they approved the convoluted wording of the Second Amendment?

The Fifth Circuit, in footnote 32, stated that under general rules of statutory construction, preambles and the operative portion of a statute, where they can be read together in a consistent manner, should be construed so as to give that consistent meaning to both. Preambles should not be read in such a manner as would plainly be at odds with the operative portion of the statute.

The Fifth Circuit goes through the history of the adoption of the Constitution and the debates between the Federalists and the Anti-Federalists about whether a bill of rights was needed before the Constitution was approved.

The Federalists realized that they had one shot at getting the Constitution ratified, and that was to not get bogged down in amendments–which would drag out the ratification process, and perhaps even prevent ratification.

The Anti-Federalists feared a strong central government and wanted a bill of rights so there would be no doubt that the federal government being created was a “limited”one.

Various states approved the Constitution only on the condition that such a bill of rights be added.

The Federalists argued that there was a danger in listing certain rights. The danger was that the federal government would insist that it could do anything not specifically prohibited. The debate between the two view points usually consisted of the Anti-Federalists insisting that a particular right be included in a bill of rights and the Federalists arguing that it was obvious that the proposed Constitution was not a threat to that right.

Once one is past the argument about whether to have a bill of rights, the question becomes what rights should be included. The debate over whether the right to keep and bear arms was a right to be included in the Bill of Rights is instructive. The Federalists said it was obvious that individuals had the right to keep and bear arms. Who could doubt that. The Anti-Federalists were just as insistent that the right be included. And the main reason given was their fear of standing armies. It was noted that the new Constitution allowed for the creation of a standing army in Article I, Section 8.

The people voting on the constitution had first-hand experience of the danger to liberty posed by a standing army. The answer, both sides agreed, was a militia. “Militias” were of two types. A “select militia” was a group of citizen soldiers organized at a state level. The word “militia,” standing alone, meant all the people. In Federalists No. 46, James Madison said that the power of Congress to raise and support armies posed no threat to liberty because such an army, if misused, “would be opposed [by] a militia amounting to near half a million of citizens with their arms in their hands.” See Emerson at 235. This was the militia. It was the army of the people, well-armed, and ready to deal with the soldiers of the standing army if such soldiers and their military leaders tried to take away the liberty of the people.

And this was not just theory. This was the reality of the day. This belief in both the danger of standing armies and of the power of the people, acting as a militia, to secure liberty, explains the preamble.

The Fifth Circuit went through this argument in detail, and analyzed the ratification process of each state, noting whether a requirement of a bill of rights was present as a term of ratification of the Constitution and whether the right to keep and bear arms was included in that proposed bill of rights.

As we all know, the anti-federalists won the day, and it was decided to add a bill of rights. The right to keep and bear arms was included from the beginning. On August 24, 1789, the House of Representatives sent its version of the Second Amendment to the Senate. It read:

"A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person."

The Senate made three changes. (1) the words “composed of the body of the people” were eliminated, (2) the words “the best” were replaced with “necessary to the,” and (3) the entire religious scruples clause was stricken.

As the Fifth Circuit pointed out, there is an abundance of historical evidence that the Anti-Federalists distrusted the idea of a “select militia” every bit as much as they distrusted a standing army of the federal government. Thus, the collective rights theory that the Second Amendment protects “select militias” makes no historical sense.

"Clearly, if the Anti-Federalists believed the amendment offered any support for the formation of a select militia, or only recognized the right of members of the select militia to keep and bear arms while on active duty, they would have vociferously opposed it. It must be remembered that the entire goal of submitting amendments was to pacify, not infuriate, the Anti-Federalists."

Emerson at 250-251.

The House approved the Senate version and the entire Bill of Rights was forwarded to the States on September 26, 1789.

Eighteenth Century Commentators

Having considered what the framers were saying in the late 1700's, the Fifth Circuit next turned to what the leading legal commentators on the Constitution were saying in the 1800's.

St. George Tucker (1803):

In commenting on the Second Amendment, Tucker said,

This may be considered as the true palladium of liberty. . . . Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.

1 St. George Tucker, Blackstone’s Commentaries: with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia, p.300 (1803).

William Rawle (1829):

Commenting on the Second Amendment, William Rawle stated,

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.

A View of the Constitution of the United States of America, pp.125-26 (Da Capo Press 1970) (2d ed. 1829).

Justice Joseph Story (1833):

Supreme Court Justice Joseph Story, in commenting on the Second Amendment, noted,

The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep, and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist, and triumph over them.

Commentaries on the Constitution of the United States, pp.708-709 (Carolina Academic Press 1987) (1833) (emphasis added by court).

Thomas Cooley (1880):

The last commentator the Fifth Circuit examined was Thomas Cooley. Cooley addressed the phrasing of the Second Amendment.

It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. . . . The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose.
A standing army is condemned by the traditions and sentiments of the people, as being as dangerous to the liberties of the people as to general preparation of the people for the defence of their institutions with arms in preservative of them.

The General Principles of Constitutional Law in the United States of America, pp.270-272 (Rothman & Co. 1981) (original ed. 1880) (emphasis added by court).

Comment During Oral Argument of Emerson at Fifth Circuit

Its always dangerous to predict how the judges are going to decide a case based on their questions during oral argument. However, a comment by Judge DeMoss to the Government’s Attorney gave a hint of where Judge DeMoss and Judge Garwood were headed. Judge DeMoss told the Government Attorney:

"You shouldn’t let it bother your sleep that Judge Garwood and I, between us, own enough guns to start a revolution in most South American countries."

The Fifth Circuit Conclusion

"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. All the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans."

Emerson at 260.

Application of § 922(g)(8) to Emerson

Having concluded that the Second Amendment applies to individuals, the Fifth Circuit turned to whether § 922(g)(8) infringes on Emerson’s Second Amendment rights.

The court first noted that the Second Amendment is subject to “limited, narrowly tailored specific restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms. . . .” Emerson at 261.

The court notes that “it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms.” Emerson at 261.

Emerson argued that because the temporary orders contained no express finding that he represented a credible threat to the physical safety of his wife or child, § 922(g)(8) was unconstitutional. The Fifth Circuit said it was “concerned with the lack of express findings in the order” (Emerson at 261), but noted that an actual hearing with prior notice and an opportunity to participate was required by the statute.

The court also fell back on black letter law that says (mostly in contexts other than divorce) that a temporary injunction will not issue unless there is a “likelihood that irreparable hard will occur.” Emerson at 262.

The court concluded that Congress, in enacting § 922(g)(8) proceeded on the assumption that the laws of the various states were such that court injunctions concerning threats to spouses would not issue in the absence of evidence of “a real threat or danger of injury to the protected party by the party enjoined.” Emerson at 262.

Emerson then argued that the evidence before the family law court was insufficient to show he represented a credible threat to his spouse or child. The court said that under prior case law the court was precluded from a collateral review of the order where the order was not “transparently invalid” as to have “only a frivolous pretense to validity.” Emerson at 264. In other words, the court was not going to examine the evidence from the family law hearing to determine whether there was enough evidence to justify the temporary orders.

The Fifth Circuit concluded:

[T]he nexus between firearm possession by the party so enjoined [Emerson], and the threat of lawless violence is sufficient, though likely barely so, to support the deprivation, while the order remains in effect, of the enjoined party’s Second Amendment right to keep and bear arms; and that this is so even though the party enjoined may not collaterally attack the particular predicate order in the section 922(g)(8) prosecution, at least so long as the order, as here, is not so transparently invalid as to have only a frivolous pretense to validity [emphasis added].

Emerson at 264.

The decision of the District Court was reversed and the case was remanded for further proceedings not inconsistent with the Fifth Circuit's, i.e., a trial.

At the trial for violation of 18 U.S.C. § 922(g)(8), which lasted only one day, Dr. Emerson was convicted of possessing the Beretta, and was sentenced to thirty months in federal penitentiary.

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