United States vs. Emerson

As we look forward to the Supreme Court’s review of District of Columbia vs. Heller, I’d like to take a second look at a 2001 ruling in the Fifth Circuit Court.

At question was Timothy Emerson’s divorce, during which his wife filed an unfounded restraining order against him. Despite a complete paucity of evidence proving Emerson was a threat to his wife’s welfare, a lower court issued the order, which barred Emerson from legally owning guns while the order was in effect.

The Fifth Circuit Court’s ruling took a long look at the context, history and wording of the Second Amendment and concluded that it did in fact protect the right of individuals to keep and bear arms.

One common argument is that the muddled Miller ruling implied that firearms ownership only applied to state-run militias, rather than individuals. In fact, Miller made no such claim, something the Emerson decision makes clear.

Our view of the meaning of “the people,” as used in the Constitution, is in harmony with the United States Supreme Court’s pronouncement in United States v. Verdugo-Urquidez, 110 S.Ct. 1056, 1060-61 (1990), that:

“‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. The preamble declares that the Constitution is ordained and established by ‘the People of the United States.’ The Second Amendment protects ‘the right of the people to keep and bear Arms,’ and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to ‘the people.’

While this textual exegesis is by no means conclusive, it suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of people who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

First, the rejection of the “collective rights” model of argument. The Bill of Rights does not confer privileges, nor does it have anything to do with government powers. It simply protects inalienable individual rights. Imagine the First Amendment being interpreted to say that rights of assembly, religious observance and the press only apply to government-sanctioned organizations. Yes, you should feel a chill pondering that.

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.

(…) 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 Miller.

Here we have a refutation of the misinterpretation of the Miller decision. At this point, the Emerson decision delves into the actual history and drafting of the Second Amendment:

The House began its consideration of what would become the Second Amendment on August 17, 1789. Congressman Eblridge Gerry moved to strike the religiously scrupulous exemption. See House of Representatives, Debate, August 17, 1789 (excerpt reprinted in Young, supra note 34, at 695-99). This motion was defeated by a vote of 24-22; however, this language would later be dropped by the Senate.

Opponents of the individual rights model find hope in the initial appearance of the religiously scrupulous exemption and comments made by Congressman Gerry in attempting to excise it. They argue that because “bear arms” has a military connotation in the religiously scrupulous clause, it necessarily carries the same meaning in the substantive guarantee. This construction is supported, we are told, by Gerry’s objection. Gerry feared that the federal government would use the clause to destroy the militia by declaring a large number of people religiously scrupulous and, therefore, ineligible for militia service. This would pave the way for oppression by the federal government’s standing army.

“This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures, with respect to a militia, as to make a standing army necessary. Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.”

Following this, we have the idea of the militia as an ad-hoc military body, formed by citizens independent of the government:

“In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government.

That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.

“The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.

“The prohibition is general. 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.”

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

The Founders knew not only that standing armies were an easy way to trample liberty, but that arms in the hands of citizens prevented the very founding of such armies.

Given the political dynamic of the day, the wording of the Second Amendment is exactly what would have been expected. The Federalists had no qualms with recognizing the individual right of all Americans to keep and bear arms. In fact, as we have documented, one of the Federalists’ favorite 1787-88 talking points on the standing army and federal power over the militia issues was to remind the Anti-Federalists that the American people were armed and hence could not possibly be placed in danger by a federal standing army or federal control over the militia. The Second Amendment’s preamble represents a successful attempt, by the Federalists, to further pacify moderate Anti-Federalists without actually conceding any additional ground, i.e. without limiting the power of the federal government to maintain a standing army or increasing the power of the states over the militia.

So, according to Emerson, this is the correct interpretation:

“A well regulated Militia [comprised of the citizenry], being necessary to the security of a free State [in opposition to standing armies], the right of the people [individuals] to keep and bear Arms, shall not be infringed.

In Heller, the court will have to address the Emerson decision, and it seems a far stretch for them to throw it out or reinterpret it. Additionally, in their recent ruling in Watson vs. United States, the concurring opinions state, “The Government’s first effort to trump ordinary English is rejected,” indicating a desire to read the laws as explicitly written.

It doesn’t get much more explicit than that.