12/01 Second Amendment Protects Individual Right

Second Amendment Protects Individual Right
by
Larry Pratt

The U.S. Fifth Circuit Court of Appeals has finally rendered an opinion in the Emerson case (U.S. v. Emerson). The verdict? Yes, the Second Amendment protects an individual right to keep and bear arms.

No, the Court argued, the Second Amendment does not protect some collective right of a state to have a militia.

In a backhanded fashion, the Court answered the question about what does “infringed” mean, as in, “… the right of the people to keep and bear arms shall not be infringed.” Answer? Infringed means that law-abiding citizens cannot have their gun rights denied.

According to the court, however, this amendment does not protect the ever-expanding group of people legislated into an excluded category. Examples of constitutional exclusions are felonies, domestic violence misdemeanors and restraining orders.

Emerson was accused of brandishing a firearm at his estranged wife, and this led to the issuance of a restraining order. When he subsequently bought a firearm, he was in violation of the federal statute barring possession of firearms while under a restraining order. Subsequent to the prosecution of the federal charge, Emerson has been acquitted of related state charges.

The Court carried out an extensive review of the Second Amendment literature, much of which has appeared in law school journals during the last several years. They also took a long look at the Miller case from the 1930’s which dealt with possession of an unregistered machine gun.

The Fifth Circuit determined that while the Miller case is somewhat ambiguous, it by no means should be seen as undermining an individual right to keep and bear arms interpretation of the Second Amendment.

The Court put it like this:

    We reject the 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 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.

The Court went on to rule that depriving Emerson of ownership of his guns because of the restraining order against him did not infringe his Second Amendment right to keep and bear arms.

In a terse statement the Court held that they were not going to rule on the constitutionality of depriving Emerson of his gun rights, due of a restraining order, under the Tenth Amendment. Their reasoning put the blame squarely on Emerson and his attorney — they did not raise the Tenth Amendment in their appeal.

I agree that this was a serious error on Emerson’s part, because this is probably the most pro-Tenth Amendment court in the land. Had Emerson argued that, under the Tenth Amendment, restraining orders in divorce proceedings are not a power delegated to the federal government, the Fifth Circuit would likely have agreed with the trial court that Emerson’s constitutional rights were violated, even if for different reasons.

The trial court said Emerson’s rights had been violated under the Second Amendment, but not under the Tenth. The Circuit court ruled that his Second Amendment individual right was not violated, but they likely would have tossed the federal law out under the Tenth Amendment.

Now, the matter goes back to the trial court. Should the prosecutor choose to press on, Emerson could face years more of being in court. This is possible in spite of the restraining order having been lifted, the divorce being final and the state related charges having been rejected by a jury.

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