I. United States v. Emerson

I. United States v. Emerson

The Fifth Circuit Court of Appeals' recent decision in United States v. Emerson4 revived a long-dormant legal debate over the right to keep and bear arms. Three competing views predominate in the gun control debate, which most scholars call the collective rights view, the sophisticated collective rights view, and the individual rights view. The collective rights view says that the Second Amendment does not apply to individuals but actually does nothing more than guarantee a state's right to arm its militia.5 The sophisticated collective rights view says that the Second Amendment protects a form of an individual right, but the right can only be exercised by members of a formal state militia, who are bearing arms while actively participating in that militia's activities.6 The individual rights view says that the Second Amendment recognizes the right of individuals to keep and bear arms.7

The Emerson court broke with long standing precedent and recognized the individual rights view of the Second Amendment, to the exclusion of the other two views (held by every Circuit until Emerson was handed down). But before we analyze Emerson's constitutional reasoning, we need to get a basic grasp of what the case was all about.

In divorce proceedings, a Texas judge issued a boilerplate temporary restraining order which enjoined Dr. Timothy Emerson from, among other things, threatening his wife or causing bodily injury to her or their child. Later he was indicted for unlawfully possessing a firearm while subject to the order, in violation of 18 U.S.C § 922(g)(8). Emerson asked a federal district court to quash the indictment on several grounds, including a claim that § 922(g)(8)(C)(ii) was on its face a violation of his individual Second Amendment right to keep and bear arms. The district court agreed with Emerson and dismissed the indictment for that reason and others.

The government appealed to the Fifth Circuit Court of Appeals and won reinstatement of the indictment. The Fifth Circuit held that the nexus between firearm possession by Emerson and the threat of lawless violence was just barely enough to justify depriving his Second Amendment rights while the order remained in effect.8

Although Emerson lost in the end, the Fifth Circuit did recognize the validity of one of his novel claims. Emerson argued that the Second Amendment protects the rights of individual citizens to keep and bear arms. The court's interpretation of the Second Amendment deserves a look, if for no other reason than its sharp break from persuasive precedent. On this argument, the decision raised four main points.

First, the Emerson court ruled that the appearance of "bear Arms" in the Second Amendment accords fully with the plain meaning of the subject of the substantive guarantee (i.e., "the people" are the ones bearing arms), and offers no support for the proposition that the Second Amendment applies only during periods of actual military service or only to those who are members of a select militia.9

Second, Emerson held that 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.10

Third, the Emerson court ruled that taken as a whole the text of the Second Amendment's substantive guarantee aims at an individual rights interpretation, especially because of the guarantee's placement within the Bill of Rights and the wording of the other nine Amendments around it, and because of the original Constitution as a whole.11 Specifically, the court said "[it] appears clear that 'the people,' as used in the Constitution, including the Second Amendment, refers to individual Americans."12

Last, Emerson stated that the Second Amendment's substantive guarantee, read as guaranteeing individual rights, may 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."13 As argued elsewhere in the case, the preamble referring to the militia does not contradict the placement of the Second Amendment within the Bill of Rights, the wording of nearby Amendments, and the wording of the rest of the main body of the Constitution.14

So, Emerson makes a pretty air-tight argument for the individual rights view. But if its reasoning ends up as the law of the land, whether by persuading the other Circuits, the Supreme Court, or Congress, a new issue will need to be resolved. Gun-control advocates will not quietly admit defeat and move on to other pursuits. They will likely shift their approach and try to argue that although individuals may keep and bear arms, certain "bad guns" do not count as "arms" under the Second Amendment. The National Rifle Association and its allies will argue the opposite. To break this future semantic stalemate, we will need to know what the word "arms" really means.