Memo: Summary of Emerson
Date: 10/19/2001

UNITED STATES v. EMERSON, 270 F.3d 203 (5th Cir. 2001).
U.S. Court of Appeals for 5th Circuit, Oct. 16, 2001



The court rejected a statutory construction argument because the
language was plain and it would have involved rewriting the statute; it
rejected the due process Fifth Amendment claim because Dr. Emerson
received notice and appeared at the hearing; it rejected the commerce
clause claim because the statute has a requirement that the firearm or
ammunition be shipped or transported in interstate or foreign commerce
or that the possession be in or affecting commerce; it rejected the
Tenth Amendment claim because it was abandoned on appeal. The court
then discussed the Second Amendment claim.


Three Views Examined by the 5th Circuit

The court noted that courts and commentators have offered what may
fairly be characterized as three different interpretations of the Second
Amendment. The first is that the Second Amendment does not apply to
individuals; rather, it merely recognizes the right of a state to arm
its militia. This "states' rights" or "collective rights" interpretation
of the Second Amendment, as the court noted, has been
embraced by several U.S. Court of Appeals Circuits.

The second model admits that the Second Amendment recognizes some
limited species of individual right. This supposedly "individual" right
to bear arms, however, may be exercised only by members of a
functioning, organized state militia who bear the arms while and as a
part of actively participating in the organized militia's activities.
Under this theory, the "individual" right to keep arms applies only to
members of a militia, and then only if the federal and state governments
fail to provide the firearms necessary for such militia service. At
present, virtually the only such organized and actively functioning
militia is the National Guard, and this has been the case under law.
Currently, the federal government provides the necessary implements of
warfare, including firearms, to the National Guard, and this is likewise
historical. Under this model, the Second Amendment poses no obstacle to
the wholesale disarmament of the American people. The court noted that a
number of U.S. Court of Appeals Circuits have accepted this model,
sometimes referred to by commentators as the "sophisticated collective
rights" model

Noteworthy, in its appeal to the 5th Circuit, for reversal of lower
court's Judge Cummings' decision, the U.S. Justice Department abandoned
the states' rights model and advocated the sophisticated collective
rights model.

The third model simply recognizes the Second Amendment right of
individuals to keep and bear arms. This view was advanced by Emerson and
adopted by the district court. None of the other circuits has subscribed
to this model the court said, known by commentators as the individual
rights model or the standard model
. The court acknowledged the
individual rights view has enjoyed considerable academic endorsement,
especially in the last two decades.

Second Amendment Guarantees an Individual Right to Keep and Bear Arms

The court examined the text of the Second Amendment and concluded that,
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. It said 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.

Turning to the history of the Second Amendment's adoption, the court
found nothing inconsistent with the conclusion that, as ultimately
proposed by Congress and ratified by the states, it was understood and
intended in accordance with the individual rights model as set out

The court stated:

  "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."

The court examined the preamble and harmonized it with the substantive
right. In sum, it held that, to give the Second Amendment's preamble its
full and proper due, there is no need to torture the meaning of its
substantive guarantee into the collective rights or sophisticated
collective rights model which is so plainly inconsistent with the
substantive guarantee's text, its placement within the bill of rights
and the wording of the other articles thereof and of the original
constitution as a whole. If the people were disarmed there could be no
militia (well-regulated or otherwise) as it was then understood. That
expresses the proper understanding of the relationship between the
Second Amendment's preamble and its substantive guarantee.

The court examined United States v. Miller, 307 U.S. 174, 59 S.Ct. 816
(1939). It held:

  "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

The court further noted: "There is no contention here that the Beretta
pistol possessed is a kind or type of weapon that is neither 'any part
of the ordinary military equipment' nor such "that its use could
contribute to the common defense" within the language of Miller (nor
that it is otherwise within the kind or type of weapon embraced in the
government's second Miller argument, e.g., 'weapons which can have no
legitimate use in the hands of private individuals' so as to be
categorically excluded from the scope of the Second Amendment under
Miller's holding)."

Regulation of Right to Arms and Second Amendment

The court noted:

  "Although, as we have held, the Second Amendment does
protect individual rights, that does not mean that those rights may
never be made subject to any limited, narrowly tailored specific
exceptions or restrictions for particular cases that are reasonable and
not inconsistent with the right of Americans generally to individually
keep and bear their private arms as historically understood in this

This standard, at a minimum, requires that any law that
seeks to regulate the right to keep and bear arms must be
subjected to heightened scrutiny.

The court then examined the domestic violence restraining order statute
and Texas law. The court opined that "it is clear to us that Texas law
meets these general minimum standards. See, e.g., Texas Indus. Gas v.
Phoenix Metallurgical
, 828 S.W.2d 529, 532 (Tex. App.-Hou. [1st Dist.]
"A trial court may not issue a temporary injunction except to prevent a
threatened injury. . . . The commission of the act to be enjoined must
be more than just speculative, and the injury that flows from the act
must be more than just conjectural. . . . The trial court will abuse its
discretion if it grants a temporary injunction when the evidence does
not clearly establish that the applicant is threatened with an actual,
irreparable injury."
The court further noted that "[m]oreover, such orders are subject to
being set aside by the issuing court as well as being subject to some
review by an appellate court. In such a case, we conclude that the nexus
between firearm possession by the party so enjoined 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."

The court closed by stating that

  "[w]e 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."


Judge Robert M. Parker specially concurred in the result, saying that
all references to the Second amendment are dicta and unnecessary to the
opinion. This is a bizarre position, since the U.S. District Court used
the Second Amendment to void the statute. Consequently, the Court of
Appeals was compelled to address the meaning of the Second Amendment.

The majority rejected his bizarre view: "We reject the special
concurrence's impassioned criticism of our reaching the issue of whether
the Second Amendment's right to keep and bear arms is an individual
right. That precise issue was decided by the district court and was
briefed and argued by both parties in this court and in the district
court." The majority also stated "[w]e likewise reject the implied
criticism (in the special concurrence's fourth paragraph) for not
mentioning certain 'facts' not alleged in the indictment, not found to
be true by any trier of fact, and not relevant to the section 922(g)(8)
violation alleged. The district court dismissed the indictment and
Emerson has not yet been convicted of anything. In fact, we have been
informed that he has been acquitted of state charges relating to the
matter mentioned in the special concurrence."


This case had nothing to do with state action, therefore, the Fourteenth
Amendment was not an issue. The court, however, examined some cases
holding that the Second Amendment does not apply to the states. The
court noted that "these holdings all came well before the Supreme Court
began the process of incorporating certain provisions of the first eight
amendments into the Due Process Clause of the Fourteenth Amendment, and
as they ultimately rest on a rationale equally applicable to all those
amendments, none of them establishes any principle governing any of the
issues now before us." Therefore, the issue of incorporation can be
raised in an appropriate case.


The court did not just reject federal court rulings that judicially
nullified the Second Amendment, it also criticized state courts: "We
also observe that to interpret state constitutional provision protecting
the right of the citizen or the people to 'bear arms' as applying only
where the individual is actively engaged in actual military service is
necessarily to either (1) contemplate actual military service for that
purpose as including military service other than that which is ordered
or directed by the government; or (2) construe the constitutional
provision as saying no more than that the citizen has a right to do that
which the state orders him to do and thus neither grants the citizen any
right nor in any way restricts the power of the state. Of course, the
latter difficulty is especially applicable to the theory that such state
constitutional provisions grant rights only to the state. While two (and
only two) state courts (both in the twentieth century) have seemingly
adopted that view, those two decisions do not appear to even recognize,
much less attempt to justify, the anomaly of construing a constitutional
declaration of rights as conferring rights only on the state which had
them anyway. See City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619
(Kan. 1905) (in prosecution for carrying a pistol within city limits
while intoxicated, construing bill of rights provision 'that the people
have the right to bear arms for their defense and security' as one which
'refers to the people as a collective body' and which 'deals exclusively
with the military. Individual rights are not considered in this
section.'); Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976) (in
prosecution for possession of shotgun with barrel less than 18 inches
long, provision of 17 of bill of rights that 'the people have a right
to keep and bear arms for the common defense' is 'not directed to
guaranteeing individual ownership or possession of weapons;' while a
'law forbidding the keeping by individuals of arms that were used in the
militia service might then have interfered with the effectiveness of the
militia and thus offended the art. 17 right . . . that situation no
longer exists; our militia, of which the backbone is the National Guard,
is now equipped and supported by public funds.')." The court concluded
that these two bizarre cases rest on an intellectual foundation made of
quick sand.


The impact of the opinion in United States v. Emerson, 270 F.3d 203
(5th Cir. Oct. 16, 2001), on the anti-self-defense and anti-gun movement
must be devastating. It also demonstrates that the intellectual movement
in support of this right, including the writing of numerous law review
articles, which the court cited, strongly influenced this court.
This is a case of the pen saving the sword.

For the underlying case, CLICK HERE:
For a related court opinion, CLICK HERE:
For a primer on the 2nd Amendment, CLICK HERE: