Washington Post article here.
Yesterday, the Fifth Circuit Court of Appeals, with jurisdiction over Texas, Louisiana, and Mississippi, said in its U.S. v. Emerson decision that the right to own firearms is an individual right.
They also said that individuals who violated laws could lose that right (and apparently denied Emerson’s personal claim of a right to bear firearms on that ground), and that the right applied to firearms “suitable as personal, individual weapons.”
Whaddaya think?
You realize you’ve just poured the proverbial gasoline on the barbeque grill again, right? 
But, Anthracite, its on my celebratory b-b-q pit (brontasaurus burger, anyone?).
Don’t expect this to be the final word. The decision tries to overturn 52 years of precedent since the Supreme Court’s 1939 decision, and the Supreme Court may not easily agree (but since December 12, ya never know). Also, this pronouncement is almost entirely unrelated to the case it sprang out of.
Judicial activism, anyone?
And this is new, how? 
Actually, if the Post article accurately describes the decision, I’d be happy if the Supreme Court were to affirm it.
I agree that this probably won’t be the last word. But the US v. Miller decision you allude to is hardly strong precedent for a collective rights or “sophisticated collective rights” view. It is a very ambiguous decision with an odd procedural history. The Emerson decision discusses Miller carefully and the 5th Circuit’s decision does not directly contradict Miller, for the plain reason that Miller never states that the Second Amendment doesn’t protect an individual right.
This decision will obviously be controversial, but it is decidedly not a case of judicial activism.
IA anal, maybe, but IANAL.
Miller itself isn’t the entire body of precedent, right? All the lower-court cases that have been decided in accordance with a restrictive view, and not reviewed much less overturned by the Supreme Court since, add a lot of precedental weight, too, don’t they?
So dumping that body of precedent would indeed be “judicial activism”, in at least as broad a sense of the term as the right wing likes to use when referring to decisions they themselves don’t like. And that’s before getting into a political discussion of a lower court stretching to make unprecedentally-supported constitutional interpretations of laws that aren’t even applicable to the case at hand.
Care to explain?
Interpreting the Second Amendment as an individual right where the second clause reads “the right of the people to keep and bear arms shall not be infringed,” is getting rid of judicial activism, not partaking in it. The U.S. Constitution is very explicit in all cases where the powers are distributed. The counter argument which says that the right applies to national guards or other governmental bodies renders the amendment a “typo,” oxymoronic, and unnecessary. Of course the government can bear arms, that is what governments do. Moreover, such an interpretation is not supported by history. Also, such an interpretation ignores the clause in the U.S. Constitution which grants the power to Congress to raise an army (Article I, Section 8).
“A well regulated militia being necessary to the security of a free state…” (the first clause of the Second Amendment) means that citizens should be able to shoot like “regulars” (troops). In a historical context this means that an armed citizenry should be able to defend itself, and its freedoms, like soldiers. This interprtation does not render the amendment oxymoronic or unnecessary, and is supported by history.
The whole debate hinges on the definition of “well-regulated.” Of course this does not mean regulated the way we think of it today. If it did one would have expected the nascent federal government to have attempted to create some kind of agency, which it did not. Moreover, at the time, gun ownership was as normal as toothbush ownership is today. To “regulate” guns in the modern sense would have been viewed as silly, suicidal, and unnecessary.
It’s the only modern case in which the Supreme Court dealt with the Second Amendment, so it is the major precedent upon which the government relied.
The Fifth Circuit is not bound by what other circuit (or district) courts have decided. Many of those decisions are based on a different interpretation of Miller that the Fifth Circuit rejected.
The fact that the Supreme Court hasn’t overturned something carries no legal precedential weight. Refusal by the Supreme Court to hear a case can not be construed as an acceptance by the Supreme Court of the principles or logic upon which the lower court decided the case.
As I discussed above, the Fifth Circuit didn’t dump a body of precedent, so it would not be judicial activism even by the broad definition.
Again, they didn’t make an “unprecedentially-supported” interpretation. They were well within all applicable precedent (which they thoroughly discussed in their opinion).
And the issue of the Second Amendment was applicable to the case at hand. Mr. Emerson had argued that the statute under which he was charged was unconstitutional because, among other arguments, it violated his rights under the Second Amendment. The Constitution is on a higher level than statutes. If there is a conflict between a statute and the Constitution, the Constitution wins. So, in order to decide if Emerson’s indictment was proper, the Court had to determine (1) whether the Second Amendment was an individual or collective right, and, if it is an individual right (2) whether the statute was unconstitutionally broad in light of the Second Amendment. It would be impossible for the Court to decide Emerson’s case without analyzing the constitution.
I hope this explanation helps.
Zoff, that sounds like a very restrictive definition of precedent and courts’ obligation to be bound by it. It even sounds like a court can do whatever the hell it wants as long as it isn’t directly refuted by a higher court decision. I don’t think that’s what most of us would understand to be the full meaning of “precedent”, even if we were trying to make a case for the allowability of “judicial activism”. And yes, this is a political matter wearing judicial robes.
Re the case at hand: The appeals court, if I understood it correctly, reaffirmed the ruling that said the plaintiff was bound by the no-gun-possession-allowed sentence, even while claiming that the constitutional case he raised in an attempt to overturn it was valid and grounded. How can a court make a constitutional interpretation and then not bind itself to act accordingly? That’s what I meant by the constitutional analysis being irrelevant.
not much to add, but I found a link to the case on the Fifth Circuit’s webpage. If the case has moved, the docket number is 99-10331 and the opinion was released on October 16.
ElvisL1ves, precedent comes in two varieties. Binding precedent is a decision on the same issue by a higher court. Lower courts in the same jurisdiction are bound by that decision. The other variety is persuasuve precedent. These are decisions on the same issue in other jurisdictions. These can be used to support a decision, but can’t be used to compel a decision. These second category is used by appellate courts in different jurisdictions, such as the various federal jurisdictions and various state courts.
I’m still reading Emerson, but I’ve found the passage where the Fifth Circuit decides the other cases don’t bind their decision.
They then move to a long analysis of the Second Amendment and its meaning. I don’t have time to read it right now, but it concludes with:
Robb, thanks for the clarification. “Persuasive precedent” is the concept I was referring to, but that Zoff was avoiding. Thanks for confirming that it does indeed have value. Certainly, the more of it there is, the stronger its aggregate precedental value, too, right.
One has to admire the, well, gall of this decision in stating that everyone else for the last half-century has gotten their constitutional interpretations wrong, and then refusing to elaborate in detail on the grounds of irrelevance to the case.
I just read the opinion, thanks for the HandiLink[sup]TM[/sup] Robb. Those justices were thinking in terms of SCOTUS review of their decision, I doubt it will be overturned. They carefully avoided striking the federal law yet kept the individual right. [OBSEQUIOUS] BRILLIANT! There is little doubt their historical analysis is without peer in the history of firearms litigation, especially the state constitutional analysis and the Federalist contentions. Oh, hell, the whole thing is a masterpiece of appellate reasoning. If anyone doubts the arguments I raised above, please consult the Fifth Circuit. They explained it much better, and researched it to death. [/OBSEQUIOUS]
Elvis, The other circuits cannot bind the Fifth Circuit, that is nothing new or revolutionary. So long as Miller is not interpreted by SCOTUS as dispositive on the “individual right” issue, the opinion is airtight in that regard (yes, IAAL). We now have a clash of circuits. Look for the SCOTUS to overturn “collective right” analysis, probably on a 5-4 or 6-3. Your assertion that they do not “elaborate in detail” is, ah, wrong. [sub]looking for a word that means wrong factorial[/sub]
ElvisL1ves, a number of factors decide whether a previous decision is persuasive. Certainly, that many other courts developed the same answer to the same question is persuasive. You’ll also find, that in such a situation, a lawyer will simply argue that it is a different question. In Emerson, it appears that the Fifth Circuit determined that Miller was an answer to a different question.
Other factors in persuasiveness can include the reputation of the court or judge issuing the opinion.
Beagle I appreciate your thanks. Its always nice to post something in GD that no one takes issue with. 
Whether it’s restrictive or not is a matter of taste, I suppose. But that’s the way it is. The Fifth Circuit is not bound by what the Fourth, Third, Ninth, etc. Circuit says. Circuit Courts will sometimes cite another Circuit’s decisions and adopt the same view, but they are under no obligation to do so. Only the Supreme Court’s decisions bind a federal appeals court.
On preview I note I’ve been accused of “avoiding” the issue of “persuasive precedent”. In addition to the paragraph above let me clarify: “Persuasive precedent” really doesn’t mean much. If an appeal court independently decides to adopt another Circuit’s reasoning, they are free to do so. If they choose not to, they are free to do so. In fact, one of the reasons the SC takes cases is if there is a “circuit split”. A circuit split occurs when the various circuits disagree on a matter of statutory or constitutional interpretation. The SC will often step in and settle the issue. It happens all the time.
Actually, the appeals court reversed the district court’s dismissal of the indictment. Despite the reversal, the constitutional analysis was necessary. The reason the appeals court reversed is because constitutional rights can be made subject restrictions for particular cases that are not inconsistent with the general individual right (you have free speech but you can’t yell “Fire!” in a crowded theater). The appeals court found that, even though individuals have a right to keep and bear arms, the statute was an allowable restriction because (according to the appeals court interpretation of the statute) the restriction on gun ownership was only allowed when there was a showing of a specific danger to that person owning a weapon. Thus, the particular restriction was constitutional.
I think you should read the decision before casting aspersions on the integrity of the judges. The quotes Robb gave were the court’s conclusions. The issues were more fully discussed earlier in the decision. They don’t refuse to elaborate. Read the case. If you have substantive objections to the decision, let’s discuss them.
I’m aware of that. But persuasive precedent still applies between appeals courts, doesn’t it? Isn’t that enough basis for the next level up to tell them to get back into line? If not, why not?
I was referring to this line: “… we will not now further elaborate as to the exact scope of all Second Amendment rights”.
But the politicized Supreme Court we now have will do what it wants, and will find whatever rationale it takes to support it, I certainly agree. Look for the amount of glee with which Scalia jumps on it.
I’m still waiting for the usual right-wing suspects to jump in an splutter about the impropriety of judges legislating from the bench. Looks like that isn’t gonna happen here - unsurprisingly.
IANAL, but I’d have to concur that 62 years of persuasive precedent since Miller, spread across the various circuits, that the Supreme Court has never seen fit to challenge, is not exactly a triviality.
A ruling that goes against that body of precedent constitutes judicial activism, if the term is to have any meaning.
That doesn’t mean it’s wrong. Sometimes judicial activism is good, or even necessary. Sometimes precedent is wrong (Plessy v. Ferguson, anyone?) and judicial activism is necessary to correct the mistakes of the past.
A mindless opposition to judicial activism, however, is wrong. It’s even more wrong if the judges you like best have engaged in it. (I’m talking about Dubya, who ran against activist judges last year, while saying he’d appoint more justices like Scalia. :rolleyes:)
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Reread my earlier post and What Zoff said. You are arguing in a vacuum. One argument takes out your persuasive precedent argument–the Fifth Circuit was unpersuaded.
Ad hominem is the refuge of the weak. This was dealt with above. It is not judicial activism to use plain meaning analysis to reverse earlier judicial activism. I know the simplicity and rectitude of the argument will not dent your bubble. If you believe in precedent so much please defend Plessy v. Ferguson. This precedent argument is facile. If it really mattered there would not be two levels of federal appellate courts, or different judicial circuits. “One opinion, that settles it” would rule the day. You need to come up with something better than name-calling to win this one. Why not read the opinion? That would be helpful in formulating a response.
Spooky simulpost of Plessy.
I have to do some stuff today–I hate it when that happens–play nice people. Suffice it to say the SCOTUS does not “challenge” anything, they review cases from appellate courts, and have general jurisdiction over a few esoteric areas not relevant here. There is a “case or/and controversy” requirement. I would explain, but you can look it up in Black’s Law or probably find it on the internet. Basically, what you seem to think the SCOTUS does would be rank judicial activism. The SCOTUS cannot just go out and “shop” for issues they are interested in, any issue must be raised in a specific case or controversy.
I refer you to the plain meaning argument above. This makes your claim of judicial activism seem ill-advised.