# 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:** 2\ **Page:** 4
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 22, 2001, 1:14pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/61 "2001-10-22T13:14:16Z")
> [@](#): > > \*Originally posted by Zoff \* > 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. Unless you’re claiming that a militia is a bunch of individuals acting on their own, but in some “well-regulated” way, and not a collective organization, I don’t see what other interpretation is even possible. > [@](#): > > 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. [/quote] After accounting for your increasingly-irritated tone, you seem to be asking for confirmation that the Second Amendment right is restricted IMHO. Well, yes it is, if the first half of that single sentence has any meaning at all. The purpose of the amendment wouldn’t have been stated if it wasn’t intended to have any practical effect on the amendment’s implementation, would it? Why else would they have bothered? As much as you and the Fifth Circuit would like the _Miller_ ruling that the Founding Fathers meant what they said to be erroneous, a grasp of the English language combined with common sense says otherwise. > [@](#): > > Industry standard. You are, again, trying to claim it is “settled law”. I have explained that it isn’t several times. You have not “explained” that, simply asserted it repeatedly. I was in fact referring to your claim, as I understood it, that you’d prefer every case to be decided de novo on first principles, depending on a complete and accurate analysis based on the Constitution by the presiding judge, than with any regard whatsoever to precedents in other cases or analyses. If that is not in fact what you meant, please clarify. > [@](#): > > 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. You have stated “over and over” that you don’t consider precedent to be “settled law” - maybe it isn’t, but then of what value is it? Any? Why bother with it at all? ---
**Author:** ![Zoff](https://avatars.discourse-cdn.com/v4/letter/z/6de8d8/32.png) [@Zoff](https://boards.straightdope.com/u/Zoff)\ **Post date:** [October 22, 2001, 6:37pm UTC](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960/62 "2001-10-22T18:37:06Z")
> [@](#): > > Unless you’re claiming that a militia is a bunch of individuals acting on their own, but in some “well- regulated” way, and not a collective organization, I don’t see what other interpretation is even possible. The right was meant to allow individuals to keep and bear arms. That is why the right is given to the “people”. Militias, at the time of the drafting of the Bill of Rights, were organized but not necessarily organized by the government. > [@](#): > > After accounting for your increasingly-irritated tone, you seem to be asking for confirmation that the Second Amendment right is restricted IMHO. I don’t believe my posts are “increasingly irritated”. They are certainly not meant to be. What I am asking for is support in the historical record for your view. You are arguing points which you want to be accepted as self-evident or obvious, but they are not. If you want to debate the meaning of any of the amendments in the Bill of Rights, looking at history is unavoidable. > [@](#): > > As much as you and the Fifth Circuit would like the Miller ruling that the Founding Fathers meant what they said to be erroneous, a grasp of the English language combined with common sense says otherwise. Here is an example of your claim that certain definitions or findings are self-evident. You claim it is “common sense”. Whose common sense? How is common sense defined? You’d be right (and I’d be right there with you) to condemn an opinion that holds a certain way merely because it’s “common sense” to do so. Now _that_ would be an abdication of judicial responsibility. As for the “grasp of the English language”, we should take into account how the English language was used at the time of drafting the Second Amendment. It may be “common sense” to you that militia = National Guard, but even a brief perusal of the historical record shows that the Founding Fathers did _not_ use this definition. It is an axiom of statutory (or constitutional) construction that the meaning of the words at the time of the drafting are to be used when interpreting the meaning of the statute (or constitution). The English language changes over time. It only makes sense to refer to the definitions the drafters of a document had in mind when determining the document’s meaning. > [@](#): > > You have not “explained” that, simply asserted it repeatedly. No. I _have_ explained it. And my explanations accurately conveyed the state of the law. You have repeatedly asserted it is settled law and that settled law should have been followed by the Fifth Circuit with no supporting evidence. Your definition and use of the term “settled law” is contrary to its accepted legal meaning. > [@](#): > > I was in fact referring to your claim, as I understood it, that you’d prefer every case to be decided de novo on first principles, depending on a complete and accurate analysis based on the Constitution by the presiding judge, than with any regard whatsoever to precedents in other cases or analyses. If that is not in fact what you meant, please clarify. I think you misunderstood my point. First, the issue was not “settled law” in the Fifth Circuit, notwithstanding the decisions of other circuits. Second, an appeals court looks at the case before it when deciding the issue. So the Fifth Circuit had Emerson’s appeal before it and no direct precedent (by either the Fifth Circuit or the Supreme Court) to guide them in their decision. Therefore, they did a deeper analysis. I am not arguing that such analyses need to be done in every case. Once there is precedent in the Fifth Circuit, then the Fifth Circuit doesn’t need to do the in-depth analysis. But there wasn’t a settled body of Fifth Circuit law for them to consult. That’s why they needed to do the analysis. I live in the Fourth Circuit. Therefore, Fourth Circuit (and Supreme Court) decisions define my acceptable area of conduct. The holdings of the Fifth, Third, Ninth, or any other circuits do _not_ define my legal duties and protections. My rights and responsibilities will often differ substantially from a person living in the Ninth Circuit. That’s the way it is. And if I ever have to appeal to the Fourth Circuit, I know that they will look at my case and their precedent to decide the appeal. If there is no applicable precedent, they will interpret any statute or amendment necessary to arrive at a decision. They will not adopt the decisions of another circuit merely because another circuit has decided the issue. If the Fourth Circuit decides to adopt the reasoning of another circuit, it will be because they find the reasoning compelling. This method of rendering decisions makes the result more predictable, since it allows people (usually attorneys) to look at the past decisions in close or analogous areas of law and try to predict how the circuit will rule. Requiring a circuit to follow the decisions of other circuits makes results less predictable. That’s the way the court system works. Whether that is the best way is another debate. [Previous page](https://boards.straightdope.com/t/u-s-v-emerson-gun-rights-decision/87960.md?page=3)