# U.S. v Emerson gun-rights decision **URL:** \ **Category:** Great Debates\ **Created:** [October 17, 2001, 12:53pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960 "2001-10-17T12:53:03Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Zoff](https://avatars.discourse-cdn.com/v4/letter/z/6de8d8/32.png) [@Zoff](https://boards.straightdope.com/u/Zoff)\ **Post date:** [October 17, 2001, 5:33pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/21 "2001-10-17T17:33:33Z")
> [@](#): > > _Originally posted by RTFirefly_ > 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. While other decisions should certainly not be dismissed out of hand, I don’t think many of the other decisions are as forceful as one might imagine. Many of the other Circuits cited _Miller_ for the proposition that the Second Amendment doesn’t protect an individual right. _Miller_ was sometimes cited with no analysis or elaboration. The problem is, _Miller_ didn’t really say that. While it’s certainly arguable that the SC meant that (though I don’t agree) a lower court decision citing _Miller_ with no analysis isn’t very persuasive. There are other cases that deal with the issue more in-depth, but the body of caselaw is acutally fairly sparse. So, I don’t really think the other decisions are terribly persuasive. > [@](#): > > A ruling that goes against that body of precedent constitutes judicial activism, if the term is to have any meaning. “Judicial activism” is one of those terms that is almost impossible to define, and I don’t really want to take a stab at it. But I will explain what I meant in the context of my posts to ElvisL1ves. He defined judicial activism, at its broadest, as “dumping [a] body of precedent”. But since the Fifth Circuit didn’t dump any precedent, the judicial activism charge fails when using his own definition. The _Miller_ and _Emerson_ decisions are not contradictory. They can both exist, side by side. Like I said, I don’t want to get into trying to define “judicial activism”. To me, its often a term used when a person is mad about a decision but unable to say why the decision is wrong. I only discussed it in the context it was being used. So I think we at least agree that “judicial activism” is often used as a bogeyman. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [October 17, 2001, 5:46pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/22 "2001-10-17T17:46:53Z")
From the decision: > [@](#): > > D. Second Amendment protects individual rights > > 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. However, because of our holding that section 922(g)(8), as applied to Emerson, does not infringe his individual rights under the Second Amendment we will not now further elaborate as to the exact scope of all Second Amendment rights. I have to say, this works for me. Seriously, from a gun-control POV, what’s wrong with this? If we argue that the Second Amendment only defines a right of the state, and of individuals only insofar as they are members of an organized state militia, then we are in effect saying that the states have the right to outlaw all firearms - any state that disbands its militia could theoretically outlaw all firearms, like D.C. has. **I’m against that.** What I _do_ want is two things: first, that the Federal government, and the several States, have the right to ban children, felons, the mentally incompetent, and other dangerous sorts from possessing firearms (which this ruling embraces), and second, that the governments have the ability to restrict firearms ownership to those weapons “that are suitable as personal, individual weapons”, which is what the Fifth Circuit claims is the extent of the Second Amendment protection. I’ve been saying for awhile that I thought the Second Amendment ought to be rewritten to (1) make it unambiguous that the right to bear arms is an individual right, and (2) include the two restrictions on that right that I’ve just mentioned. Thanks to a bit of inspired judicial activism, I may get my wish, if the Supreme Court affirms the paragraph I’ve just quoted. Once the Supreme Court rules that the right to possess firearms is an individual right, will you gun-rights types stop talking about slippery slopes? 🙂 ---
**Author:** ![tracer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tracer/32/20578_2.png) [@tracer](https://boards.straightdope.com/u/tracer)\ **Post date:** [October 17, 2001, 6:22pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/23 "2001-10-17T18:22:58Z")
RTFirefly wrote: > [@](#): > > If we argue that the Second Amendment only defines a right of the state, and of individuals only insofar as they are members of an organized state militia, then we are in effect saying that the states have the right to outlaw all firearms - any state that disbands its militia could theoretically outlaw all firearms, like D.C. has. **I’m against that.** Uh, a little clarification about collective vs. individual rights in the _U.S. v. Emerson_ decision: Although the 5th Circuit justices do say that the right to keep and bear arms protected by the 2nd Amendment is an individual right and not a collective right, and does not distinguish between individual in vs. not in the militia, the 2nd Amendment only prohibits the **Federal** government from infringing upon that individual right. Even in light of the _Emerson_ decision, each State **still** has the power to outlaw any and all firearms within its borders, _whether that State has a militia or not_ – unless that State’s Constitution also contains a clause that protect the right to keep and bear arms. Of the 50 States in the Union, only 5 lack a right-to-keep-and-bear-arms clause in their State Constitutions. (One of those States is California, which goes part way to explaining the atrocious California anti-gun laws that have been passed in the last 2 years.) ---
**Author:** ![Demise](https://avatars.discourse-cdn.com/v4/letter/d/34f0e0/32.png) [@Demise](https://boards.straightdope.com/u/Demise)\ **Post date:** [October 17, 2001, 6:29pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/24 "2001-10-17T18:29:25Z")
> [@](#): > > \*Originally posted by RTFirefly \* > **If we argue that the Second Amendment only defines a right of the state, and of individuals only insofar as they are members of an organized state militia, then we are in effect saying that the states have the right to outlaw all firearms - any state that disbands its militia could theoretically outlaw all firearms, like D.C. has. I’m against that.** Why would you argue that? The States can’t disband their militias (the National Guard) any more than they could the US Army. Not to mention that they definitely couldn’t disband the Reserve Militia. See [this link](http://www.army.mil/cmh-pg/documents/1901/Root-NG.htm) for comprehensive information on the National Guard. the Militia Act, and the National Defense Act. ---
**Author:** ![BigE](https://avatars.discourse-cdn.com/v4/letter/b/8edcca/32.png) [@BigE](https://boards.straightdope.com/u/BigE)\ **Post date:** [October 17, 2001, 6:49pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/25 "2001-10-17T18:49:01Z")
Having read the 5th Circuit Court’s decision (in parts), I am somewhat unconvinced. Much of the Court’s legal arguments make sense, but at least one is a bit strange, its interpretation of the 2nd Amendment. I find it a bit strange that they go about analyzing it backwards: they first use the language after the preample to support their notion of the meaning of the Amendment, THEN proceed to say that the preample MUST be interpreted to support the Court’s previous discussion of what comes after it. However, if approached the other way around, the preample might very well, and despite the Court’s following argument, be construed differently, and thus make the following interpretation worthless. The Court implied that the Militia was held to contain all “able-bodied men”, which is true, but what is also true but goes unmentioned is that the Militia of the 1790s was not a hypothetical body of men, as it is according to their interpretation today (it is NOT the National Guard – it is not any permanently established, active organization), but a very real institution with training rituals and regular “get togethers”. However, the Fifth Circuit Courts decision would render ANY armed body of men a militia – regardless of whether the 2nd Amendment’s call for it being “well regulated” is fulfilled or not. BigE (whose namesake is off, bombing Afghanistan) P.S. Hi to everyone, this being my first post on this board. ---
**Author:** ![Robb](https://avatars.discourse-cdn.com/v4/letter/r/a183cd/32.png) [@Robb](https://boards.straightdope.com/u/Robb)\ **Post date:** [October 17, 2001, 6:55pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/26 "2001-10-17T18:55:17Z")
The opinion has [moved](http://www.ca5.uscourts.gov/Opinions/OpinHome.cfm). Search for October 16. ---
**Author:** ![Vic\_Ferrari](https://avatars.discourse-cdn.com/v4/letter/v/dbc845/32.png) [@Vic\_Ferrari](https://boards.straightdope.com/u/Vic_Ferrari)\ **Post date:** [October 17, 2001, 7:07pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/27 "2001-10-17T19:07:48Z")
Here’s a link that still works: [http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm#N\_38\_](http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm#N_38_) The fact of the matter is that the 5th Circuit undertook a _thorough_ and _comprehensive_ review of pretty much everything ever written on the Second Amendment and concluded that it does indeed mean what it says. The amendment itself is so plainly clear that I can’t imagine how any intelligent person could conclude that it only grants the states a right to bear arms.\* I haven’t read the whole decision yet, but I’ve been very impressed with what I have read. They blow gigantic holes into the two competing theories and I can’t imagine that the Supreme Court will disagree with them if a Second Amendment case ever reaches their court. **tracer** , unfortunately you’re right. Even if the Supreme Court rules that the Second Amendment protects an individual’s right to bear arms, this doesn’t prevent the states from outlawing guns. I hope that gun rights advocates will push for the incorporation of the 2nd Amendment into the 14th (or whatever they call it). \*I haven’t seen this mentioned much but according to the ruling, if we accept the collectivist view that states have a “right” to bear arms, then it’s the only “right” granted to them under the constitution. Everywhere else they’re granted “authorities” or “powers,” never “rights.” ---
**Author:** ![Vic\_Ferrari](https://avatars.discourse-cdn.com/v4/letter/v/dbc845/32.png) [@Vic\_Ferrari](https://boards.straightdope.com/u/Vic_Ferrari)\ **Post date:** [October 17, 2001, 7:11pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/28 "2001-10-17T19:11:10Z")
Oops, I must have clicked on a footnote. Here’s the link to the start of the opinion: [http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm](http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm) ---
**Author:** ![Demise](https://avatars.discourse-cdn.com/v4/letter/d/34f0e0/32.png) [@Demise](https://boards.straightdope.com/u/Demise)\ **Post date:** [October 17, 2001, 7:42pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/29 "2001-10-17T19:42:18Z")
Hello **BigE** , welcome to the SDMB. > [@](#): > > \*Originally posted by BigE \* > **However, the Fifth Circuit Courts decision would render ANY armed body of men a militia – regardless of whether the 2nd Amendment’s call for it being “well regulated” is fulfilled or not.** Please read the linked site I posted above. Here is a quote for you: > [@](#): > > The Militia Act of 1903–together with its 1908 amendment…repealed the Militia Act of 1792 and divided the militia into two groups: the Reserve Militia, defined as all able-bodied men between 18 and 45, and the Organized Militia, defined as state units receiving federal support. You can also read [this thread](http://boards.straightdope.com/sdmb/showthread.php?threadid=84598) for a fairly recent debate over the 2nd Amendment. ---
**Author:** ![BigE](https://avatars.discourse-cdn.com/v4/letter/b/8edcca/32.png) [@BigE](https://boards.straightdope.com/u/BigE)\ **Post date:** [October 17, 2001, 8:23pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/30 "2001-10-17T20:23:25Z")
Please read the linked site I posted above. Here is a quote for you: > [@](#): > > The Militia Act of 1903–together with its 1908 amendment…repealed the Militia Act of 1792 and divided the militia into two groups: the Reserve Militia, defined as all able-bodied men between 18 and 45, and the Organized Militia, defined as state units receiving federal support. Very interesting no doubt, though I prefered to go to the Acts of 1903 and 1792 themselves, rather than somewhere else. It occurs to me that there is very little relevance to the matter of the 1903 Militia Act, which modifies but does no repeal the Militia Act of 1792, at least it doesn’t say so anywhere in the Act. And besides, the issue at hand is the interpretation of a militia at the time of the drafting of the Second Amendment, not the drafting of the Militia Act of 1903. > [@](#): > > \*\* > You can also read [this thread](http://boards.straightdope.com/sdmb/showthread.php?threadid=84598) for a fairly recent debate over the 2nd Amendment. \*\* Done, but doesn’t answer my question. Besides noting, of course, that there does seem to be a tendency to tell people to go off and read something, ignoring their remarks? I’m not much into the gun debate, because I see there is no way either side is going to convince the other, but I was rather more interested in the technical merits of the Fifth Circuit Courts decision-making process, especially the round-about argument it made regarding the wording of the 2nd Amendment. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 17, 2001, 8:38pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/31 "2001-10-17T20:38:45Z")
**beagle** , I refer you to the first **RTFirefly** post after the one in which you chewed into me. He responded better than I would have. There is a place for judicial activism, and a place for judicial restraint. Neither should be a product of politics, but in fact almost inescapably often are. A body of precedent (even though it’s “persuasive” only, pax **Zoff** ), if grown and sustained without challenge for a lengthy period, does in fact constitute settled law, doesn’t it? If some midlevel regional court wants to overturn it, even though there may be questions about its original basis, then it constitutes an attempt at changing settled law, and can be described as judicial activism, no matter your views on the subject. Re your assertion that the Supreme Court only listens to cases that are brought before it, that also does not bear up under scrutiny by a politically-aware person. The Court can choose whatever cases it wants to hear, for whatever reasons it likes, and in fact does _not_ decide to hear most cases appealed to it. Use of that discretion to pursue certain predetermined goals is also fairly described as judicial activism - it is not only a choice of how to interpret laws, but which laws. And that doesn’t even get into explaining how the reason for the second half of the Second Amendment can be ignored even though it’s explained in the first half. Getting around that certainly does require strained reasoning, and the more strained, the less valid. ---
**Author:** ![Demise](https://avatars.discourse-cdn.com/v4/letter/d/34f0e0/32.png) [@Demise](https://boards.straightdope.com/u/Demise)\ **Post date:** [October 17, 2001, 8:52pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/32 "2001-10-17T20:52:18Z")
> [@](#): > > \*Originally posted by BigE \* > **Done, but doesn’t answer my question. Besides noting, of course, that there does seem to be a tendency to tell people to go off and read something, ignoring their remarks?** I guess I didn’t make my point clear. You said this: > [@](#): > > However, the Fifth Circuit Courts decision would render ANY armed body of men a militia – regardless of whether the 2nd Amendment’s call for it being “well regulated” is fulfilled or not. My point is that a Federal law has already defined a militia as any man between the ages of 18 and 45. The 5th Circuit Court, in this case, is not doing anything new. By telling you (and now **Elvis** ) to read an older thread, I’m not ignoring your remarks. Your questions have been answered before, so it would be rather redundant to hash out the debate again. ---
**Author:** ![ModernRonin2](https://avatars.discourse-cdn.com/v4/letter/m/c37758/32.png) [@ModernRonin2](https://boards.straightdope.com/u/ModernRonin2)\ **Post date:** [October 17, 2001, 8:58pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/33 "2001-10-17T20:58:48Z")
I guess that’s fairly true. They affirmed the right of the individual to own guns (and other arms) but also seemed to say that there may be restrictions on that right. That seems mostly reasonable to me. I mean, there are restrictions on other rights, as well. For instance, you can’t use your right to free speech to justify shouting “fire” in a crowded theater when there isn’t a fire. I’m not sure I entirely agree with application of the law in this case, though. Is the fact that a man isn’t allowed to see his children a sufficient justification for suspending his right to bear arms? I’m not so sure. If you want an example of where this could be misapplied, let me twirl the tables around… Say there’s a divorced mother. Say she didn’t get custody of the kids, she just has visitation rights. Say that, also, she has a stalker - some jerk she dated in wake of the breakup. She really fears for her life from this stalker guy. So she takes a gun safety class, and buys a gun. Now her jerk ex-husband wants to make her life hard. So he concocts some story about her abusing the kids and gets a restraining order slapped on her. Kaboom, she’s an instant felon for simultaniously owning a gun and having a “domestic violence” restraining order on her. Far-fetched, I know. I’m just real paranoid about how laws sometimes get twisted and abused to make innocent people’s lives hell. Anyway, that bit aside, I’m pretty happy with the ruling. As someone who believes in 2nd amendment rights, but also believes that mentally ill, children and convicted, violent felons should probably not have guns, this ruling seems to strike a decent balance on a difficult issue. -Ben ---
**Author:** ![BigE](https://avatars.discourse-cdn.com/v4/letter/b/8edcca/32.png) [@BigE](https://boards.straightdope.com/u/BigE)\ **Post date:** [October 17, 2001, 9:15pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/34 "2001-10-17T21:15:56Z")
\>My point is that a Federal law has already defined a \>militia as any man between the ages of 18 and 45. The 5th \>Circuit Court, in this case, is not doing anything new. Ah see, I guess were both not getting each other’s meaning. I really don’t see the relevance of the 1903 law to the case, and the part of the decision which I am wondering about makes no mention of it either. Whether or not the 1903 defined the Militia in any way is in that case not so important (and I don’t think, either, that the 5th Circuit Court meant to imply in its decision that only men from 18 to 45 had an individual right to bear arms?), as my question was about the sudden redefinition of the term militia – from a community affair with regulated schedules, training, and tasks, to something encompassing (as in the Court ruling) everyone or (in the 1903 law) all men between the ages of 18 to 45. Or more to the point, is that what the Circuit Court says? \>By telling you (and now **Elvis** ) to read an older \>thread, I’m not ignoring your remarks. Your questions have \>been answered before, so it would be rather redundant to \>hash out the debate again. Ah, I should say I didn’t mean you and did not mean this thread, but rather the others I have read. It seems to me that frequently, the answer of pro-gunners to anti-gunnners is “your figures are worthless”, without providing any better figures. Again, I don’t have any stakes in this debate, since I’ll happily let Americans wear as many arms as they please, as long as they don’t bring them to my country (or drop them on it, for that matter!). Tim ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [October 17, 2001, 9:33pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/35 "2001-10-17T21:33:29Z")
> [@](#): > > \*Originally posted by tracer \* > Although the 5th Circuit justices do say that the right to keep and bear arms protected by the 2nd Amendment is an individual right and not a collective right…the 2nd Amendment only prohibits the **Federal** government from infringing upon that individual right. Even in light of the _Emerson_ decision, each State **still** has the power to outlaw any and all firearms within its borders… Wait a second. Where the U.S. Constitution establishes an _individual_ right, then the States can’t take it away, no matter how they change their Constitutions. Thought we settled that early in the 20th century. (Hey yo **Sua** , **Jodi** , **DSY** , a little help here! :D) ---
**Author:** ![Robb](https://avatars.discourse-cdn.com/v4/letter/r/a183cd/32.png) [@Robb](https://boards.straightdope.com/u/Robb)\ **Post date:** [October 17, 2001, 9:54pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/36 "2001-10-17T21:54:53Z")
\*\* BigE\*\*, I think your concern regarding the order in which they analyzed the 2nd Amendment is interesting, but reading what they wrote, I bet that they would reach their same conclusion regardless of how they got there. More fundamentally, once they determined it was an individual right, all of their analysis would head in that direction. As a matter of Constitutional argument, the court’s opinion is impressive. They use a variety of Constitutional arguments to support their conclusion. I think that they left enough in their opinion to teach that a militia isn’t just any armed group, but that it is the armed populace existing for the defense of the community and state. I don’t think that the guys holed up in Montana are what the Fifth Circuit has in mind. > [@](#): > > As observed in Miller, “the Militia comprised all males physically capable of acting in concert for the **common defense** ” and “that ordinarily when **called for service** these men were expected to appear bearing arms supplied by themselves.” Id., 59 S.Ct. at 818. Miller further notes that “’[\*i]\*n all the colonies . . . the militia systems . . . implied the general obligation of all adult male inhabitants to possess arms.’” Id. (citation omitted).(33) There are frequent contemporaneous references to “a well-regulated militia” being “composed of the body of the people, trained in arms.”(34) Plainly, then, “a well-regulated Militia” refers not to a special or select subset or group taken out of the militia as a whole but rather to the condition of the militia as a whole, namely being well disciplined and trained.(35) And, “Militia,” just like “well-regulated Militia,” likewise was understood to be composed of the people generally possessed of arms which they knew how to use, rather than to refer to some formal military group separate and distinct from the people at large.(36) Madison also plainly shared these views, as is reflected in his Federalist No. 46 where he argued that power of Congress under the proposed constitution “[t]o raise and support Armies” (art. 1, § 8, cl.12) posed no threat to liberty because any such army, if misused, “would be opposed [by] a militia amounting to near half a million of citizens with arms in their hands” and then noting “the advantage of being armed, which the Americans possess over the people of almost every other nation,” in contrast to “the several kingdoms of Europe” where “the governments are afraid to trust the people with arms.” The Federalist Papers at 299 (Rossiter, New American Library). Plainly, Madison saw an armed people as a foundation of the militia which would provide security for a “free” state, one which, like America but unlike the “kingdoms of Europe,” was not afraid to trust its people to have their own arms.(37) The militia consisted of the **people bearing their own arms when called to active service** , arms which they kept and hence knew how to use. If the people were disarmed there could be no militia (well-regulated or otherwise) as it was then understood. That expresses the proper understanding of the relationship between the Second Amendment’s preamble and its substantive guarantee. As stated in Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, supra n.12, “the [second] amendment’s wording, so opaque to us, made perfect sense to the Framers: believing that a militia ( **composed of the entire people** possessed of their individually owned arms) was necessary for the protection of a free state, they guaranteed the people’s right to possess those arms.” Id. at 217-18. Similarly, Cooley, General Principles of Constitutional Law (Little, Brown, 1880; 1981 Rothman & Co. reprint) rejects, as “not warranted by the intent,” an interpretation of the Second Amendment “that the right to keep and bear arms was only guaranteed to the Militia,” and states “[t]he meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables the government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use.” Id. at 271. Much the same thought was expressed more than one hundred years later in the following passage from Tribe, American Constitutional Law (3d ed. 2000): > > “Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist/republican/federalism one: Its central object is to arm “We the People” **so that ordinary citizens can participate in the collective defense of their community and their state**. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather, the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes . . . a right that directly limits action by Congress or by the Executive Branch . . .” Id., Vol. 1, n.221 at 902. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [October 18, 2001, 2:48am UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/37 "2001-10-18T02:48:21Z")
> [@](#): > > \*Originally posted by RTFirefly \* > > Once the Supreme Court rules that the right to possess firearms is an individual right, will you gun-rights types stop talking about slippery slopes? 🙂 \*\* NEVER! 🙂 Actually, there is still a lot of ‘slippery slope’ danger in the precedent that they set. If an individual right can be removed for domestic violence charges (which, by the way, an angry/annoyed wife could easily cook up to hurt her husband), then eventually, you can end up with a parking ticket that orders you to turn all your guns in to the local police station to be melted down. 😛 Possibly ex-post-facto (think Lautenburg). ---
**Author:** ![Beagle](https://avatars.discourse-cdn.com/v4/letter/b/85f322/32.png) [@Beagle](https://boards.straightdope.com/u/Beagle)\ **Post date:** [October 18, 2001, 4:19am UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/38 "2001-10-18T04:19:40Z")
> [@](#): > > \*Originally posted by ElvisL1ves \* > \*\ ***beagle** , I refer you to the first **RTFirefly** post after the one in which you chewed into me. > > …Re your assertion that the Supreme Court only listens to cases that are brought before it, that also does not bear up under scrutiny by a politically-aware person… > > And that doesn’t even get into explaining how the reason for the second half of the Second Amendment can be ignored even though it’s explained in the first half. Getting around that certainly does require strained reasoning, and the more strained, the less valid. \*\* GRRRRR! Look out, I’ll hit you with my floppy ears too. No it is not “settled law” except in the circuit in which it is settled. In the Fifth Circuit it was not settled. Circuits come into conflict–A LOT. This is not unusual or any big deal. Not an assertion, fact. Here is [case or controversy](http://www.law.cornell.edu/lexicon/case.htm). Yes, they choose to review what they review. But, the issues are already framed before they get to the SCOTUS. Your view of the SCOTUS is based on one opinion (2000 election) which has jaundiced your view of everything. The law is a lot more than one case. Note: the SCOTUS did not ask for the Gore case it was appealed TO them. You know when people say “possession is 9/10s of the law”? Those people must have taken real property for one week and dropped out of school. “Strained reasoning?” That’s it. C’mon, interpreting “the people” as the national guard is strained. “Militia,” which you hang your hat on, was NEVER a governmental body. Read the opinion, they go on and on, and on. I know your mind is made up, but you are butting heads with history. > [@](#): > > **RTFirefly** Wait a second. Where the U.S. Constitution establishes an individual right, then the States can’t take it away, no matter how they change their Constitutions. This is a common misconception. The [Fourteenth Amendment](http://www.ifas.org/fw/9707/history.html) needs to be considered along with the [Incorporation Doctrine](http://www.unt.edu/lpbr/subpages/reviews/halbrook.html). The first one looked good but short, and the second one looked topical. To do more research Yahoo ["incorporation](http://www.historycooperative.org/journals/lhr/19.3/br_6.html) [doctrine](http://gi.grolier.com/presidents/aae/side/14amend.html) [Fourteenth Amendment.](http://www.uchastings.edu/plri/fall94/mcclen2.html)" (not case sensitive, just force of habit) ---
**Author:** ![Zoff](https://avatars.discourse-cdn.com/v4/letter/z/6de8d8/32.png) [@Zoff](https://boards.straightdope.com/u/Zoff)\ **Post date:** [October 18, 2001, 11:52am UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/39 "2001-10-18T11:52:37Z")
> [@](#): > > _Originally posted by BigE_ > I find it a bit strange that they go about analyzing it backwards: they first use the language after the preample to support their notion of the meaning of the Amendment, THEN proceed to say that the preample MUST be interpreted to support the Court’s previous discussion of what comes after it. However, if approached the other way around, the preample might very well, and despite the Court’s following argument, be construed differently, and thus make the following interpretation worthless. Welcome to the boards. As my welcoming gift, I have to disagree with your analysis. Sorry. The Court looked at the meaning of the operative part of the amendment, focusing on the meaning of the word “people”. They established, through historical and legal analysis, that “people” means individuals as it does throughout the Constitution. The Court then looked at the preamble. They again looked at the historical record and found that there is no reason to interpret the preamble in a manner that contradicts the meaning of the operative clause of the amendment. In other words, there was nothing in the preamble’s language or history to indicate that it meant to modify the plain meaning of “people”. **ElvisL1ves** Let me try to clarify my remarks and sort of expand on what **Beagle** said. Sometimes, a circuit court will adopt the findings of a different circuit. But when they do, they do so because they find the legal reasoning to be compelling. They don’t adopt it merely because another circuit feels this way or even if several circuits feel that way. The adoption rises or falls on the underlying logic and analysis of the circuit court whose interpretation they seek to adopt. And, there is no _stare decisis_ among circuit courts. _Stare decisis_ is applied within a circuit if that court has ruled a certain way and the decision is old enough or has been followed enough that it is considered settled law. It also controls circuits when applying a SC decision. However, the Fifth Circuit was under no obligation to accept another circuit’s interpretation based on _stare decisis_. The government argued that _stare decisis_ controlled the Fifth Circuit because of the SC’s decision in _Miller_, but the Fifth Circuit explained why the case was not controlling on their particular issue since _Miller_ didn’t squarely address the individual vs. collective right argument. So, while the decisions of other circuits are considered, they have no precedential _power_. They are another bit of information the court can consider in issuing its opinion. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 18, 2001, 12:33pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/40 "2001-10-18T12:33:02Z")
> [@](#): > > \*Originally posted by RTFirefly \* > \*\* > > > [@](#): > > > > \*Originally posted by tracer \* > > Although the 5th Circuit justices do say that the right to keep and bear arms protected by the 2nd Amendment is an individual right and not a collective right…the 2nd Amendment only prohibits the **Federal** government from infringing upon that individual right. Even in light of the _Emerson_ decision, each State **still** has the power to outlaw any and all firearms within its borders… > > Wait a second. Where the U.S. Constitution establishes an _individual_ right, then the States can’t take it away, no matter how they change their Constitutions. > > Thought we settled that early in the 20th century. (Hey yo **Sua** , **Jodi** , **DSY** , a little help here! :D) \*\* Well, I’m not any of them, but I’ll take a crack at it. The rights set out in the Bill of Rights originally applied only to the federal government. Individuals could rely on the Bill of Rights in relation to the federal government, but not in relation to state governments. They would rely on the state constitutions in any disputes with states. The situation changed with the 14th Amendment, which provided citizens with protection under the federal Constitution against actions by the states. However, the language of the 14th Amendment is open to interpretation, and a major question arose about exactly how far it went in applying the Bill of Rights to the states. The two lines of thought were that the 14th Amendment picked up the entire Bill of Rights and applied the whole shebang to the states. Justice Hugo Black was the strongest proponent of that view on the USSC. The competing view was “selective incorporation,” that the 14th Amendment only applied those parts of the Bill of Rights that were necessary in a system of “ordered liberty.” Justice Cardoza was the main advocate for this “case-by-case” approach, which the Supreme Court ultimately adopted in [Palko v. Connecticut, 302 U.S. 319 (1937)](http://laws.findlaw.com/us/302/319.html): > [@](#): > > We have said that in appellant’s view the Fourteenth Amendment is to be taken as embodying the > prohibitions of the Fifth. His thesis is even broader. Whatever would be a violation of the original > bill of rights ( Amendments 1 to 8) if done by the federal government is now equally unlawful by > force of the Fourteenth Amendment if done by a state. **There is no such general rule.** > > [my emphasis] However, as time went by, the Supreme Court gradually held that almost all of the rights protected by the Bill of Rights were in fact selectively incorporated by the 14th Amendment and apply to the states. So although Cardozo J. won the argument about the theoretical approach, Black J. won the bottom line. The two provisions which the Supreme Court has not (so far) applied to the states via the Fourteenth Amendment are the Second Amendment, and the guarantee of a jury trial in civil matters involving more than $20, found in the Seventh Amendment. As far as I know, they’ve not definitely stated that these provisions don’t apply to the states, just that they have not commented, one way or another, possibly as a function of the fact that so few cases raised on these issues have reached the Court in the past 70 years. Now, if _Emerson_ is upheld by the USSC, you can imagine that there will be flood of cases arguing that the Second Amendment applies to the states as well through the 14th Amendment… [Previous page](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960.md?page=1) [Next page](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960.md?page=3)