The 5th Circuit Court Gets It Right
by Richard E. Gardiner
LEAA’s Corporate Counsel

[ED. NOTE: Mr. Gardiner was co-counsel in Printz v. United States, in which the Supreme Court struck down part of the Brady Act. He also has argued cases in several of the United States Courts of Appeals.]

In the only decision of a federal court of appeals to undertake a thorough, scholarly analysis of the Second Amendment, the United States Court of Appeals for the Fifth Circuit (which takes appeals from the federal trial courts in the states of Texas, Mississippi, and Louisiana) in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), concluded that the Second Amendment guaranteed an individual right ­ although it upheld the constitutionality of 18 U.S.C. § 922(g)(8)(prohibiting possession of firearms by persons against whom a protective order has been issued after a hearing), which Emerson had challenged. As Emerson is a 63-page opinion with extensive footnotes and an appendix, the following are only highlights.

The first issue dealt with by the court was the proper construction of § 922(g)(8). The court then reviewed (and rejected) Emerson’s Fifth Amendment, Commerce Clause, and Tenth Amendment challenges to § 922(g)(8). The court next turned to an analysis of the Second Amendment, beginning with a review of what it termed the three models of interpretation of the Second Amendment. In considering the merits of each of those models, the court initially analyzed the Supreme Court’s decision in United States v. Miller, 307 U.S. 174 (1939).

Unlike any other of its sister Courts of Appeals before, the Emerson court, to gain a full understanding of Miller since only the Government had filed a brief, “examined a copy of [the Government’s] brief” in Miller. That examination enabled the court to place Miller’s holdings in context. The court’s review of Miller concluded:

We believe it is entirely clear that the Supreme Court decided Miller on the basis of the government’s second argument - that a “shotgun having a barrel of less than eighteen inches in length” as stated in the National Firearms Act is not (or cannot merely be assumed to be) one of the “Arms” which the Second Amendment prohibits infringement of the right of the people to keep and bear - and not on the basis of the government’s first argument (that the Second Amendment protects the right of the people to keep and bear no character of “arms” when not borne in actual, active service in the militia or some other military organization provided for by law).

In support of this conclusion, the court further wrote:

Nowhere in the Court’s Miller opinion is there any reference to the fact that the indictment does not remotely suggest that either of the two defendants was ever a member of any organized, active militia, such as the National Guard, much less that either was engaged (or about to be engaged) in any actual military service or training of such a militia unit when transporting the sawed-off shotgun from Oklahoma to Arkansas. Had the lack of such membership or engagement been a ground of the decision in Miller, the Court’s opinion would obviously have made mention of it. But it did not.

The court went on to discuss Miller’s understanding of the term “militia,” holding:

These passages from Miller suggest that the militia, the assurance of whose continuation and the rendering possible of whose effectiveness Miller says were purposes of the Second Amendment, referred to the generality of the civilian male inhabitants throughout their lives from teenage years until old age and to their personally keeping their own arms, and not merely to individuals during the time (if any) they might be actively engaged in actual military services or only to those who were members of special or select units.

The court thus concluded that, to the extent that Miller sheds light on the matter it cuts against the government’s position” that the right to keep and bear arms is a “collective right.”

Having thoroughly analyzed Miller, the Emerson court next considered the text of the Second Amendment, focusing first on the word “people” and finding as follows:

There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words “the people” have a different connotation within the Second Amendment than when employed elsewhere in the Constitution . . .. And, as used throughout the Constitution, “the people” have “rights” and “powers,” but federal and state governments only have “powers” or “authority,” never “rights.”

With respect to the phrase “bear arms,” which the Government argued applied only to “a member of the militia carrying weapons during actual military service,” the court “concluded that the phrase ‘bear arms’ refers generally to the carrying or wearing of arms.” Finally, the court considered the preamble: “A well-regulated Militia, being necessary to the security of a free State” and concluded:

[T]he Second Amendment’s substantive guarantee, read as guaranteeing individual rights, may as so read reasonably be understood as being a guarantee which tends to enable, promote or further the existence, continuation or effectiveness of that “well-regulated Militia” which is “necessary to the security of a free State.”

Accordingly, the court determined that the preamble “does not support an interpretation of the amendment’s substantive guarantee in accordance with” the “collective rights” models.

The court next spends almost 20 pages of its opinion reviewing in extraordinary detail the history of the adoption of the Second Amendment, including the debate on the adoption of the Constitution prior to the state ratifying conventions, the debates in the state ratifying conventions on the Constitution, the debate in Congress on the Bill of Rights, and the public debate on the Bill of Rights. The court also extensively reviewed the comments of 19th Century constitutional scholars, who, in the court’s words, believed:

[T]he right of the 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.

In summarizing its examination of the historical evidence, the court stated:

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

In concluding its analysis of the Second Amendment, the court summed up this way:

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.

While finding that the Second Amendment protects the right of individuals, the court nonetheless held that, as applied to Emerson, § 922(g)(8) did not violate the Second Amendment. The basis for the court’s conclusion was that the Texas law under which the protective order had been issued against Emerson (Texas Family Code § 6.502) would not have issued:

unless the issuing court concludes, based on adequate evidence at the hearing, that the party restrained would otherwise pose a realistic threat of imminent physical injury to the protected party...

Thus, the court concluded, 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...

While the Fifth Circuit decision did not directly benefit Emerson, it set a whole new tone for the on-going debate on the meaning of the Second Amendment. We can only hope that other federal courts will honestly participate in that debate and the issue of the meaning of the Second Amendment will become a mere historical anachronism.

“[T]he right of the 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.”