# 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:** 3
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 18, 2001, 1:11pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/41 "2001-10-18T13:11:07Z")
**Zoff** , I’m no longer sure what you’re debating. Looks like you’re actually confirming **BigE** ’s complaint that the first half of the single-sentence Second Amendment has had a meaning attached to it to support the previously-concluded meaning of the second half of the single sentence. A common-sense approach might be that the Founding Fathers’ stated reason for the amendment _is_ the reason and is to be interpreted first, with the “operative clause” then to be interpreted in accordance with the stated meaning. But the reasoning process you describe has that backward - start with the operative clause, and then find an interpretation you like for the Founding Fathers’ reason. If that approach made sense, the debate would have been settled generations ago. **Beagle** , that’s what I’m referring to as “strained reasoning”, m’kay? Re the power of persuasion: I understand your explanation of the strict rules. But it’s also a principle that participants in a case should reasonably be able to expect that the decision a court renders will not depend on the personality quirks of the judges. Naturally that’s not always the case, but it’s a goal that should be adhered to. You seem to agree that other circuits’ decisions in similar cases should have significant weight in a circuit’s own decision in a particular case. If you’d agree, or explain otherwise, that an sufficient mass of such precedent, accumulated over a sufficient time, has reached the status of settled law and can actually override a detailed legal analysis, then we’d be ready to go have a beer. **Beagle** may still be working on the concept, though. ---
**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, 2:13pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/42 "2001-10-18T14:13:25Z")
**ElvisL1ves** Well, I don’t agree with **BigE** , so I guess I need to clarify. The Fifth Circuit’s analysis of the language of the Second Amendment was actually quite appropriate. They didn’t just decide on a definition they “liked” then shoehorn the preamble into their meaning. Much is made of the order in which they took the language, but that order is the only logical way to approach it. If you analyze the preamble first, it tells you nothing. You _have_ to look at the operative clause first, since that’s the meat of the amendment. You simply can’t interpret the meaning of any document by looking at the preamble. So, the Fifth Circuit looked at the operative clause. They looked to history, law, and the common meaning of “people” in the Constitution. They found that “people” means individuals, as it does throughout the Constitution. But they didn’t end their analysis at this point. Since one of the objections to the individual rights view is that the preamble means that the right is collective, they looked at the preamble. The issue was whether the preamble changed the historical, legal, and constitutional definition of “people”. They found it didn’t. The Fifth Circuit’s analysis of the operative clause, then the preamble is standard. For example, if you sued me for breach of contract, the court would not look first to the preamble of our contract. It would look to the operative clauses. If I argued the preamble altered the common meaning of certain words or clauses of the contract, the court would then look to see if the preamble did, in fact, change the meaning. But preambles don’t constitute a complete definition of rights or duties, they can merely modify those rights or duties in certain circumstances. In the Second Amendment, the Fifth Circuit held that the preamble did not modify the plain meaning of the term “people”. > [@](#): > > You seem to agree that other circuits’ decisions in similar cases should have significant weight in a circuit’s own decision in a particular case. If you’d agree, or explain otherwise, that an sufficient mass of such precedent, accumulated over a sufficient time, has reached the status of settled law and can actually override a detailed legal analysis, then we’d be ready to go have a beer. We’ll have to hold off on the beer, I’m afraid. I don’t agree that another circuit’s decision should have “significant” weight in all circumstances. Bear in mind, that an appeals court must decide the case before it. They are not engaged in a debate, they are deciding an appeal. The Fifth Circuit had to look at the district court’s _Emerson_ decision and decide if the district court had made an error of law requiring a reversal. The fact that other circuits might not agree with the district court does not constitute an error of law. Personally, I am more comfortable with a court evaluating the case before it by looking into the meaning of a constitutional amendment than I am with a court overturning a case because other circuits disagree. Though this case has broader implications, it involves a real person who has the right to have his case decided on the merits. I also disagree with your use of the term “settled law”. The fact that the other circuits have long held to a certain standard does not mean it is “settled law” in the Fifth Circuit. It just doesn’t work that way. The circuits are independent. The only thing that is “settled law” in the Fifth Circuit are those issues decided in a consistent manner by the Fifth Circuit or those things decided by the Supreme Court. And, even assuming that a collective rights view was “settled law” in the Fifth Circuit, the Fifth Circuit court of appeals still could have decided the case the way they decided it. Appeals courts are free to overturn past precedent if they do so explicitly. Since it wasn’t settled law in the Fifth Circuit, we’ll never know if they would have overturned their previous holdings, but it is certainly within their purview to do so. Yes, the law should be stable, but it should never be stagnant. The Fifth Circuit provided a careful analysis and articulated its reasoning. The fact that other circuits disagree is less important than the underlying reasoning for the decision. ---
**Author:** ![ExTank](https://avatars.discourse-cdn.com/v4/letter/e/35a633/32.png) [@ExTank](https://boards.straightdope.com/u/ExTank)\ **Post date:** [October 18, 2001, 8:16pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/43 "2001-10-18T20:16:13Z")
**RTFirefly:** first, thanks for starting this thread. Next: > [@](#): > > 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. Bolding mine. Actually, a look at the current federal regulatory situation will reveal that at least your first requirement, and parts of your second, _already exist._ That there may be room for improvement is certainly debateable; myself and others pro-gun Dopers have expressed various levels of dissatisfaction with current gun laws, and have shown how they may be abused. But we have been fairly unanimous in that any proposed regualtory improvements must offer guarantees, and have in-built mechanisms, to prevent another Clintonesque rampage against gun owners. I’ll note for the record one more time that neither the N.R.A. or the S.A.F. agitate for a “zero-state” of gun control, or that we are currently in a “zero-state” that needs to be built upon _from this point,_ regulation-wise, as Brady et.al. suggest. There are some gun owners who do, but they are not representative of the N.R.A. or any other gun owners, save themselves. Look for Brady et.al. to begin pushing legislation stating that BB guns and baseball bats are too powerful for self-defense weaponry. > [@](#): > > 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? Nope. 😃 But I might be willing to forego it until someone else brings up more regulations, on top of existing ones, that have a disproportionate impact upon the average citizen than criminal abuses of firearms. IOW: if it adds to the “Nanny State” trend, it’s a slope. See my last statement above, and **Sensor Beef’s** post up above as well (see? I am pro-gun). If Brady et.al. don’t do as I predict, I believe that the world will suddenly stop spinning, making the whole exercise moot. Shit. I just looked at H.C.I.'s [website](http://www.bradycampaign.org/). They now call themselves the Brady Center to Prevent _Gun_ Violence. They used to be just “Hangun Control Inc.”, but have since expanded the scope of their activism. I feel a little more secure in wrapping my arguments in the slippery slope “fallacy”. Half a bottle of Pepto-Bismol later, and I’m writing another $100 check to the N.R.A., which I really can’t afford because I’m currently unemployed, but to hell with it anyway. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [October 18, 2001, 9:38pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/44 "2001-10-18T21:38:24Z")
**ExTank** - about \*&%@! _time_ you showed up in this thread, friend. 🙂 > [@](#): > > \*Originally posted by ExTank \* > Actually, a look at the current federal regulatory situation will reveal that at least your first requirement, and parts of your second, _already exist._ That there may be room for improvement is certainly debateable; myself and others pro-gun Dopers have expressed various levels of dissatisfaction with current gun laws, and have shown how they may be abused. Maybe I wasn’t clear enough: what I was asking was, what’s wrong with this decision, _if you believe in gun control?_ IOW, if this decision were to become the law of the land, you guys on the gun-rights side gain something that you’ve long wanted: an affirmation by the courts that the 2nd Amendment really does grant an _individual_ right. Which, like I’ve said, I’m cool with. But to my pro-gun-control friends, I ask: if this decision becomes the law of the land, _what of importance have we lost?_ My answer is: nothing. We won’t have gained anything either, of course, but that’s unimportant. There’s no reason why gun ownership shouldn’t be an individual right, and every reason why it should. But some gun-control groups, from the news story, were unhappy with this decision. My basic question was, why? > [@](#): > > But we have been fairly unanimous in that any proposed regualtory improvements must offer guarantees, and have in-built mechanisms, to prevent another Clintonesque rampage against gun owners. I’m still trying to figure out what Clinton-era Federal gun laws affected a hunter or sportsman, or hindered citizens’ efforts to protect their homes, more than a hangnail would. But that’s another story. The main point, with respect to the ‘slippery slope’, is that an individual right to own guns seems to place a pretty strong wall across that stretch of land that y’all see as a slope. > [@](#): > > I’ll note for the record one more time that neither the N.R.A. or the S.A.F. agitate for a “zero-state” of gun control, or that we are currently in a “zero-state” that needs to be built upon _from this point,_ regulation-wise, as Brady et.al. suggest. There are some gun owners who do, but they are not representative of the N.R.A. or any other gun owners, save themselves. The problem is, the laws and regs the NRA supports, as far as I can tell, all have to do with punishing people _after_ they’ve killed. As recent events have once again illustrated, there are a lot of people in this world (and I’m not just talking about terrorists, fwiw) who aren’t the least bit deterred by potential consequences of their actions. With respect to laws and regs trying to _prevent_ rather than _punish_ gun deaths, I can’t see one that the NRA has said is OK. They were for plastic handguns (they’d better change their tune there), they’re against VA’s one-handgun-a-month law that kept my longtime home state from being every East Coast gang’s place to buy trunkloads of guns, and so forth. What gun regs are they _for_? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 18, 2001, 11:10pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/45 "2001-10-18T23:10:05Z")
Not really a hijack: Elvis1Lives - do you believe that “judicial activism,” or “ignoring settled law” correctly describes the Miranda decision? Prior to _Miranda_, it was the law that the only touchstone for admission of a suspect’s confession was voluntariness. Miranda changed the landscape dramatically - it stood for the proposition that a confession is inadmissible unless the accused was first advised of his rights. What law enforcement had relied upon for upwards of a century was no more. I’m just curious if the seemingly perjorative analysis of “judicial activism” or “ignoring settled law” also applies in that case. - Rick ---
**Author:** ![Beagle](https://avatars.discourse-cdn.com/v4/letter/b/85f322/32.png) [@Beagle](https://boards.straightdope.com/u/Beagle)\ **Post date:** [October 19, 2001, 1:52am UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/46 "2001-10-19T01:52:32Z")
> [@](#): > > \*Originally posted by ElvisL1ves \* > **Beagle** , that’s what I’m referring to as “strained reasoning”, m’kay? > > **Beagle** may still be working on the concept, though. Go back and read the opinion, then read my posts. You are annoying, at best, right now–and in way over your head. ---
**Author:** ![ExTank](https://avatars.discourse-cdn.com/v4/letter/e/35a633/32.png) [@ExTank](https://boards.straightdope.com/u/ExTank)\ **Post date:** [October 19, 2001, 11:36pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/47 "2001-10-19T23:36:07Z")
> [@](#): > > I’m still trying to figure out what Clinton-era Federal gun laws affected a hunter or sportsman, or hindered citizens’ efforts to protect their homes, more than a hangnail would. But that’s another story. Tone, friend, tone. And a hostile one at that. Almost all of their proposals were deemed ineffective by those who know firearms, and the criminal market in foreamrs, and seen as springboards for more restrictive legislation in the future. Any gun-control proposals couched in the terms of “need” or “necessity” will receive a chill reception among gun owners and enthusiasts. > [@](#): > > The main point, with respect to the ‘slippery slope’, is that an individual right to own guns seems to place a pretty strong wall across that stretch of land that y’all see as a slope. I agree. Unfortunately, the most vocal, visible, and most importantly the most influential gun-control lobby doesn’t see it that way. Their entire “no-limit” pro-control stance is founded upon the “collective rights” interpretation, which is, in itself (as I’ve maintained and the 5th Circuit has illustrated) an incorrect interpretation of _U.S. v. Miller._ > [@](#): > > The problem is, the laws and regs the NRA supports, as far as I can tell, all have to do with punishing people after they’ve killed. As recent events have once again illustrated, there are a lot of people in this world (and I’m not just talking about terrorists, fwiw) who aren’t the least bit deterred by potential consequences of their actions. > > With respect to laws and regs trying to prevent rather than punish gun deaths, I can’t see one that the NRA has said is OK. Probably because most of the proposed laws were, in their view, overly restricitive or subject to broad interpretation by regulatory agencies. > [@](#): > > They were for plastic handguns (they’d better change their tune there), Cite? > [@](#): > > they’re against VA’s one-handgun-a-month law that kept my longtime home state from being every East Coast gang’s place to buy trunkloads of guns, and so forth. Because a one-gun-a-month plan won’t stem that flow, in mine and the NRA’s view. Increased funding for law enforcement to conduct investigations may, as well as tougher penalties, although their is a point-of-diminishing-returns in that approach. The success of Project Exile in Richmond seems to indicate that we have yet to reach that point. Registration may as well (and yes, the NRA opposes registration on “slippery slope” grounds; I’m not so convinced, and think that registration may actually be somewhat key to stemming the flow of illegal guns to criminal markets), by tracking the flow of firearms in the civillian sector. > [@](#): > > What gun regs are they for? The current ones, if properly enforced. They do support barring criminals, habitual drug users, the mentally incompetent and those _convicted_ of domestic violence charges (a restraining order is too easy to obtain, and isn’t a conviction of an act in a court of law). They do support criminal background checks when purchasing from dealers, but not from private citizens. I’m hung on this issue, but for personal reasons, not philosophical ones. The opposition to Lautenberg’s proposal stems from the “mandatory 72 hours” provision. Why in the hell would we institute a National Instant Check System just to mandate a minimum 72 hour wait on background checks, _but only at gun shows?_ Mostly, and I am in agreement here, they oppose placing _excessive_ burdens-of-proof and restrictions upon the \>99% of the population that hasn’t, isn’t and won’t commit a crime because of the \<1% that has, is or will. _Excessive._ That’s the crux. What’s reasonable to some isn’t to others. Take mandatory storage laws, and mandatory trigger locks. What would _you_ suggest, or be comfortable with, in enforcing such laws? The NRA has always supported safe handling and secure storage, and encouraged the separate storage of ammunition and firearm. They started as a hunter and firearm _safety_ organization! I’ll come back to this later, but I believe I’ve thrown out some stuff to think about for a bit. ---
**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 20, 2001, 8:09pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/48 "2001-10-20T20:09:18Z")
ExTank wrote: > [@](#): > > > [@](#): > > > > They [the NRA] were for plastic handguns (they’d better change their tune there), > > Cite? I believe **RTFirefly** is referring to some independent gun owners’ (not necessarily the NRA’s) opposition to the rather ludicrous laws requiring a certain “minimum metal content” for handguns, so that you wouldn’t be able to sneak one past a metal detector. These laws have no effect other than adding one more test that gunmakers have to put their products through – and a nonsensical test at that. These laws were proposed in the wake of “plastic handgun” scares. Yes, some gun manufacturers were able to replace **some** parts of a handgun that were traditionally made out of steel with plastic. The handgrip could be plastic, for example, as could the barrel shroud and some parts of the receiver. The intent with these “plastic guns” was to make the firearm lighter. However, it is **physically impossible** to make a gun with **no** metal parts. The firing chamber must be metal in order to withstand the tremendous pressures created by the powder in the cartridge when it goes off. A plastic firing chamber would burst easily, which would result in an immediate drop in chamber pressure, which would mean the bullet wouldn’t receive any propulsion. The barrel, likewise, must be metal, unless you’re willing to have a barrel that is destroyed the first time you fire the gun. No gun yet built, or even proposed, would lack sufficient metal to fail the “minimum metal content” test. Of course, people, in general, are not only stupid, they are willfully ignorant. The general public didn’t know that these new partially-plastic guns would have enough metal parts to be easily detectable by an airport metal detector. The general public didn’t care. All they knew was that somebody was making “plastic guns.” Oh my goodness! _Plastic guns! **Somebody pleeeeeease think of the children!!** _ And, thus, the proposed anti-plastic-gun laws were born. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [October 21, 2001, 3:10am UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/49 "2001-10-21T03:10:59Z")
Sorry for the late appearance in a thread that should have been near and dear to my heart. But now that I’ve had time to read that opinion, I really only have a few observations to add. First of all, Robert Parker is one hell of a good judge. He taught an ethics class at my law school a few summers ago, and I was thoroughly impressed with the guy. Even when he got reversed by the Supreme Court on an asbestos case he had when he was a district court judge, the Court went out of its way to praise him for his handling of the case. So when Judge Parker says something is dicta, I tend to listen to him. And he’s right. If it doesn’t matter to the outcome of the case whether the right to bear arms is a collective or individual right, then it’s dicta. The majority admitted that Emerson was hosed either way, so there was no conceivable reason–other than old fashioned pontificatin’–for the majority to resolve the collective/individual question needed to be resolved. And since it _is_ dicta, that means it’s not binding law even in the Fifth Circuit. If the question ever presents itself in another case, the court may look to _Emerson_ for guidance, but it is not obliged to follow its analysis. Second, Judge Parker is also right that the majority utterly abandoned the principal of judicial restraint that says you do not decide constitutional issues unless you absolutely have to. This rule was adopted precisely to restrain the activism that many judges loved to indulge in the 60s and 70s. Why free the defendant on a well established point of law, these guys figured, when I could do it by recognizing a constitutional principle that I pulled out of my ass? There was absolutely no need for the majority to decide the constutional question of whether the right to bear arms is an individual or collective right, since Emerson couldn’t have a gun either way–yet the court still went out of its way to resolve that issue. Frankly, I really would have expected better from Judge Garwood, who’s usually quite good about judicial restraint. Finally, I think there’s an excellent chance this case is going to get taken up by the entire Fifth Circuit Court of Appeals, if Emerson files a motion for rehearing _en banc_. The court has shown a willingness to do so in its more controversial decisions over the past year few years, and I think the controversial nature of the decision will make it a prime candidate for en banc review. I suspect that even those judges who would be happy with a holding in favor of individual gun rights might be nervous about the apparent overreaching of the two judges in the majority. I do not, however, think this is a likely case for Supreme Court review, except that a few of the Justices might want to point out all the dicta in an opinion concurring with a denial of certiorari. I suspect that most members of the Supreme Court (except Thomas, who’s revealed himself to be quite gung ho about gun rights) will be quite happy to let this little bit of divisiveness slide for now while the fallout works itself out in the courts of appeal. > [@](#): > > \*Originally posted by Northern Piper \* > 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. That’s true, but also somewhat incomplete. The Supreme Court has affirmatively rejected extending the Fifth Amendment right to indictment by a grand jury to the states. Also, as you more or less suggested, there are other Bill of Rights guarantees that the Supreme Court has never considered for application against the states, such as the quratering of troops and, of course, the Second Amendment. ---
**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 21, 2001, 5:42am UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/50 "2001-10-21T05:42:56Z")
“‘You troops are just going to have to sleep out on the patio’ is a perfectly Constitutional thing for you to say.” – _Dave Barry Slept Here_ ---
**Author:** ![Demise](https://avatars.discourse-cdn.com/v4/letter/d/34f0e0/32.png) [@Demise](https://boards.straightdope.com/u/Demise)\ **Post date:** [October 21, 2001, 6:20am UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/51 "2001-10-21T06:20:16Z")
> [@](#): > > \*Originally posted by minty green \* > **So when Judge Parker says something is dicta, I tend to listen to him. And he’s right. If it doesn’t matter to the outcome of the case whether the right to bear arms is a collective or individual right, then it’s dicta.** [This lawyer disagrees.](https://www.keepandbeararms.com/information/XcIBViewItem.asp?ID=2699) He claims that the interpretation of the 2nd as an individual right _does_ matter to the outcome of the case, and as such, the individual interpretation is not dicta. > [@](#): > > The Second Amendment analysis was not dicta at all. It was required in order to reach the court’s decision. \ You see, Dr. Emerson was being charged with possession of firearm while subject to a family law restraining order. The trial court dismissed the charge based on Dr. Emerson’s argument that the law impermissibly infringed upon his rights protected by the Second Amendment. > > The government appealed and argued that the trial court was wrong in dismissing the charges because the Second Amendment neither recognizes nor protects the right of any individual to possess a firearm unless on active duty as a member of the National Guard (a militia). In order to determine whether or not the trial court was correct, analysis would be required to determine whether Dr. Emerson had any right protected by the Second Amendment. If Emerson had such a right, the court would have to go further to determine whether, under the circumstances, the statute in question impermissibly infringed on that Constitutionally protected right in a way comparable to permissible infringements on other rights such as the famous analogy that free speech rights include the right to yell “FIRE!” in a crowded place or permit slander of another. > > The court undertook precisely the required analysis. The court first engaged in an unprecedented analysis of the intent and proper construction of the Second Amendment to determine whether, as an individual, Emerson had any right protected by the Second Amendment. The court left no stone unturned in reaching the conclusion that all historical, contemporary and political evidence at the time the Second Amendment was drafted and ratified reveals no evidence of any interpretation other than that the Second Amendment was adopted solely to protect the rights of individual citizens to keep and bear personal arms for their own defense and defense of the state and the Nation. I am not a lawyer, so could you please explain why Robert B. Beauchamp would have a different opinion than Robert Parker, and why you think his interpretation is incorrect, if you in fact do? ---
**Author:** ![Joe\_Cool](https://avatars.discourse-cdn.com/v4/letter/j/ecb155/32.png) [@Joe\_Cool](https://boards.straightdope.com/u/Joe_Cool)\ **Post date:** [October 21, 2001, 6:57am UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/52 "2001-10-21T06:57:31Z")
While I’m really excited to see the 2nd Amendment finally being addressed by the higher courts (and PROPERLY, no less!), the thing that really worries me about this decision is another in a long chain of infringements on OTHER important rights: Violation of due process. Dr. Emerson was stripped of his rights to own a gun through an administrative act of the court. He was issued a routine restraining order , and not of need. There was no demonstration that his family was in any danger from him. As I understand it, it is common for restraining orders to be issued during those proceedings, and therefore without the opportunity to defend himself, he was administratively stripped of one of his most basic rights – WITHOUT DUE PROCESS OF LAW, in violation of the 5th Amendment. But a definite thumbs up on the treatment of the 2nd. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [October 21, 2001, 6:13pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/53 "2001-10-21T18:13:17Z")
> [@](#): > > \*Originally posted by Demise \* > I am not a lawyer, so could you please explain why Robert B. Beauchamp would have a different opinion than Robert Parker, and why you think his interpretation is incorrect, if you in fact do? Certainly. Beauchamp’s analysis is more or less conclusory: they had to answer the question because it was asked. That’s wrong. Courts decide _cases_ not _questions_. Courts don’t get to decide legal questions that are not necessary to the outcome of the case. Because they resolve cases and not issues, courts should _first_ inquire whether they need to resolve an issue, and _then_ resolve the issue if it is necessary. In Beauchamp’s analysis, that is almost entirely backwards. Here’s Beauchamp’s proposed analysis: > [@](#): > > _In order to determine whether or not the trial court was correct, analysis would be required to determine whether Dr. Emerson had any right protected by the Second Amendment._ So Beauchamp says the majority first had to resolve the constitutional issue . . . > [@](#): > > \*If Emerson had such a right, the court would have to go further to determine whether, under the circumstances, the statute in question impermissibly infringed on that Constitutionally protected right . . . \* Then, he says, the majority had to determine whether the Constitution changes the outcome of the case–which it clearly did not since Mr. Emerson lost no matter what the answer to the “first” question was. That makes the constitutional analysis rank dicta. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [October 21, 2001, 6:44pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/54 "2001-10-21T18:44:55Z")
> [@](#): > > \*Originally posted by Joe\_Cool \* > Dr. Emerson was stripped of his rights to own a gun through an administrative act of the court. He was issued a routine restraining order , and not of need. There was no demonstration that his family was in any danger from him. As I understand it, it is common for restraining orders to be issued during those proceedings, and therefore without the opportunity to defend himself, he was administratively stripped of one of his most basic rights – WITHOUT DUE PROCESS OF LAW, in violation of the 5th Amendment. Emerson had a restraining order entered against him through an act of the court–and it was _a judicial proceeding_, not an “administrative act.” Mr. Emerson was afforded a hearing on the matter, which he attended. A hearing is the very essence of due process, so your due process argument just ain’t gonna fly. Moreover, Mr. Emerson certainly had an opportunity to defend himself at the restraining order hearing, which you would have known had you bothered to read the opinion. Check out the opinion’s _very first paragraph_: > [@](#): > > On September 4, 1998, Judge Sutton held a temporary orders evidentiary hearing. Sacha Emerson was represented by counsel while Emerson appeared _pro se_. There is no evidence that Emerson was unable (financially or otherwise) to retain counsel for the hearing or that he desired representation by counsel on that occasion. He announced ready at the beginning of the September 4 hearing. [Mrs. Emerson’s testimony omitted.] Emerson declined an opportunity to cross-examine Sacha and presented no evidence tending to refute any of her above quoted testimony or to explain his conduct in that respect. Finally, as you also would have discovered had you actually read the opinion, there was considerable evidence that Emerson posed a serious threat of harm to his family. In addition to the majority’s recounting of Mrs. Emerson’s testimony that he had threatened to kill her friends and Mr. Emerson’s own testimony that “he was suffering from ‘anxiety’ and was not ‘mentally in a good state of mind,’” the concurring opinion makes the dangerousness point very explicitly: > [@](#): > > Though I see no mention of it in the majority’s opinion, the evidence shows that Emerson pointed the Beretta at his wife and daughter when the two went to his office to retrieve an insurance payment. When his wife moved to retrieve her shoes, Emerson cocked the hammer and made ready to fire. Emerson’s instability and threatening conduct also manifested itself in comments to his office staff and the police. Emerson told an employee that he had an AK-47 and in the same breath that he planned to pay a visit to his wife’s boyfriend. To a police officer he said that if any of his wife’s friends were to set foot on his property they would “be found dead in the parking lot.” ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 21, 2001, 8:45pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/55 "2001-10-21T20:45:28Z")
> [@](#): > > \*Originally posted by Bricker \* > Elvis1Lives - do you believe that “judicial activism,” or “ignoring settled law” correctly describes the Miranda decision? > … > I’m just curious if the seemingly perjorative analysis of “judicial activism” or “ignoring settled law” also applies in that case. > \*\* You’re plainly more familiar with Miranda than I, but yes, that would seem to be an example of judicial activism, along with the more-commonly-cited Brown and Roe cases. I’m sure there’s an argument both ways. I don’t intend the term pejoratively, as some on the right do (perhaps because they really are only referring to instances where they don’t like the outcome). There is a place for it, as I agreed earlier, but only in extreme and obvious cases, where legislative and/or executive corrective action isn’t forthcoming. The best example I can come up with is the strikedown of Jim Crow laws, notably in Brown, which would not have happened in the normal course of democracy, since the people affected weren’t allowed to participate in the process that could have done it. It clearly wasn’t “ignoring” settled law, it was consciously overruling it. But this case is patently not such an example in any of those respects. I mentioned the term “judicial activism” to provoke the usual users of the term on this board into considering where their indignation is really targeted. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 21, 2001, 9:00pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/56 "2001-10-21T21:00:49Z")
> [@](#): > > \*Originally posted by Zoff \* > If you analyze the preamble first, it tells you nothing. You _have_ to look at the operative clause first, since that’s the meat of the amendment. You simply can’t interpret the meaning of any document by looking at the preamble. Afraid we have to disagree on that. The Founding Fathers _said_ why they were writing the 2nd Amendment. Explicitly. There are few other examples of them trying to be as clear as they were about what they were doing. Interpreting what they did according to their own statement about why they did it couldn’t be a plainer course of reasoning, it seems to me. The “operative clause” may be the meat of a legal contract, as in the explanation you use, but the Constitution isn’t a contract - it’s the basis for interpreting and applying laws. The meat of the amendment isn’t in the conclusion the writers drew, it’s in what they meant. And they _said_ what they meant. The rest of any interpretation follows and is completely constrained by it. > [@](#): > > So, the Fifth Circuit looked … found that “people” means individuals, as it does throughout the Constitution {and}held that the preamble did not modify the plain meaning of the term “people”. Already on the wrong track. The extent of the right is explained by that “well-regulated militia” stuff. One has to explain away the stated reason in order to reach a predetermined conclusion, and this opinion does exactly that. > [@](#): > > Personally, I am more comfortable with a court evaluating the case before it by looking into the meaning of a constitutional amendment than I am with a court overturning a case because other circuits disagree. Is that “personally” or an actual industry standard? As a participant in a case, or a lawyer for one, I’d be more interested in knowing what the court would consider the law to be than in allowing every case to be examined de novo from first principles. If it’s generally understood what the law is, I’d hope the judge before me would follow it. > [@](#): > > Yes, the law should be stable, but it should never be stagnant. Nor should it be capricious. Nor should judges legislate on their own without darned overwhelming reasons. ---
**Author:** ![Zoff](https://avatars.discourse-cdn.com/v4/letter/z/6de8d8/32.png) [@Zoff](https://boards.straightdope.com/u/Zoff)\ **Post date:** [October 21, 2001, 10:49pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/57 "2001-10-21T22:49:14Z")
> [@](#): > > _Originally posted by ElvisL1ves_ > The Founding Fathers said why they were writing the 2nd Amendment. Explicitly. Yes. That the right of the _people_ to keep an bear arms shall not be infringed. You don’t like that it says people and want the preamble to override the plain meaning of people, but it doesn’t. The Fifth Circuit explained their reasoning in interpreting “well regulated militia”. Please explain your interpretation of “people” that makes it means something other than individuals. I understand you _want_ it to mean something else, but please show me, on the historical record, where the Founding Fathers decided “people” would mean individuals in the First, Fourth, Fifth and Tenth Amendments but not the Second. You say that “well regulated militia” **clearly** shows that it wasn’t meant to be an individual right. I don’t see that. Please explain, using historical examples. > [@](#): > > The extent of the right is explained by that “well-regulated militia” stuff. Which you apparently interpret to mean “any regulation the federal government wants”. Please support this, using historical examples. I don’t claim that their can not be any regulation. But your apparent claim that there can be _any_ regulation is just conclusory. > [@](#): > > Is that “personally” or an actual industry standard? > … > If it’s generally understood what the law is, I’d hope the judge before me would follow it. Industry standard. You are, again, trying to claim it is “settled law”. I have explained that it isn’t several times. As much as you want this to be “judicial activism” it isn’t. You can repeat that it is over and over, but it still isn’t. Your premise for claiming “judicial activism” is flawed. They did not go against “settled law” to “legislate” a holding. They examined the case before them and rendered an opinion. ---
**Author:** ![Demise](https://avatars.discourse-cdn.com/v4/letter/d/34f0e0/32.png) [@Demise](https://boards.straightdope.com/u/Demise)\ **Post date:** [October 22, 2001, 5:24am UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/58 "2001-10-22T05:24:13Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Then, he says, the majority had to determine whether the Constitution changes the outcome of the case–which it clearly did not since Mr. Emerson lost no matter what the answer to the “first” question was. > > That makes the constitutional analysis rank dicta. \*\* Ah, thank you for that clarification. I agree, that would appear to make the 2nd Amendment analysis dicta. That’s unfortunate, but at least the analysis was done, and done correctly, IMO. ---
**Author:** ![Demise](https://avatars.discourse-cdn.com/v4/letter/d/34f0e0/32.png) [@Demise](https://boards.straightdope.com/u/Demise)\ **Post date:** [October 22, 2001, 5:42am UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/59 "2001-10-22T05:42:25Z")
> [@](#): > > \*Originally posted by ElvisL1ves \* > **Already on the wrong track. The extent of the right is explained by that “well-regulated militia” stuff. One has to explain away the stated reason in order to reach a predetermined conclusion, and this opinion does exactly that.** Sorry, but you are incorrect. You can read an analysis of the 2nd Amendment by a linguist [here](https://www.keepandbeararms.com/information/XcIBViewItem.asp?id=1443). You can also read [this article](https://www.keepandbeararms.com/information/XcIBViewItem.asp?id=178) from the Yale Law Journal discussing, in depth, the modalities of constitutional argument concerning the 2nd Amendment. Our own **xenophon41** posted his analysis of the 2nd Amendment [here](http://boards.straightdope.com/sdmb/showthread.php?threadid=84598). ---
**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 22, 2001, 6:35am UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/60 "2001-10-22T06:35:04Z")
> [@](#): > > \*Originally posted by minty green \* > \*\* > > > [@](#): > > > > \*Originally posted by Northern Piper \* > > 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. > > That’s true, but also somewhat incomplete. The Supreme Court has affirmatively rejected extending the Fifth Amendment right to indictment by a grand jury to the states. Also, as you more or less suggested, there are other Bill of Rights guarantees that the Supreme Court has never considered for application against the states, such as the quratering of troops and, of course, the Second Amendment. \*\* I wasn’t aware of the affirmative rejection of the grand jury right - thanks for pointing it out. Although the USSC has not considered the issue of the quartering of troops, there is one Circuit level case which has held that the 3rd Amendment is incorporated by the 14th Amendment under the _Palko_ doctrine of "ordered liberty: [Engblom v. Carey, 677 F. 2d 957 (2d Cir. 1982),](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/engblom.html) on remand, 572 F. Supp. 44 (S.D.N.Y.), aff’d. per curiam, 724 F.2d 28 (2d Cir. 1983). The case was somewhat unusual: during a state-wide strike of New York state corrections employees, Governor Carey called out the National Guard to run a state prison. They were lodged in residences that were normally used by the prison guards. Some of the prison guards, displaced from their residences, sued arguing that the state’s action violated the 3rd Amendment, as applied to the states by the 14th Amendment. The 2nd Circuit Court of Appeals divided on result, but unanimously agreed that the 14th Amendment applied the 3rd Amendment to the states: > [@](#): > > Opinion by Mansfield J. for the Court (Feinberg C.J. concurring): > > > [@](#): > > > > We first address the novel claim based on the Third Amendment, a provision rarely invoked in the federal courts. We agree with the district court’s conclusion that the National Guardsmen are “Soldiers” within the meaning of the Third Amendment. Moreover, we agree with the district court that the Third Amendment is incorporated into the Fourteenth Amendment for application to the states. > > Opinion by Kaufman J., concurring in part and dissenting in part: > > > [@](#): > > > > I do not disagree with the majority that the Third Amendment should be incorporated into the Fourteenth Amendment for application to the states. The Third Amendment embraces aspects of liberty and privacy that have justified the application of the Fourth Amendment’s prohibition against unreasonable searches and seizures to the states. The notion that the home is a privileged place whose privacy may not be disrupted by governmental intrusions is basic in a free and democratic society. As Judge Jerome Frank felicitously phrased it, “(a) sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place …” Accordingly, Judge Sweet properly concluded that the Third Amendment is incorporated into the Due Process Clause of the Fourteenth Amendment as one of the “fundamental” rights “rooted in the tradition and conscience of our people” and thus “implicit in the concept of ordered liberty.” I appreciate that a decision by a Circuit court is not the last word, as the vigourous discussion on the issue of precedent in this thread indicates. However, _Engblom v. Carey_ does appear to be the leading (and only) case on point, and concludes that the 3rd Amendment is incorporated into the 14th Amendment. [Previous page](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960.md?page=2) [Next page](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960.md?page=4)