The Fifth Circuit's ruling in U.S. v. Emerson,
released today, gives proponents of the individual right to keep and bear
arms reason to cheer.
But not quite as much reason as many may think.
Evaluation of the import of judicial decisions and their supporting
opinions begins with the premise that the narrowest possible meaning be
In this case, the Fifth Circuit stated that the Second Amendment right to
keep and bear arms free of federal infringement was indeed personal rather
than one allocated to states, or to individuals only when actually
participating in the business of a state-organized militia, now, for all
practical purposes, the National Guard.
But, despite the Court's couching its conclusion following its extensive
analysis of that issue as a "holding", it was in fact
"obiter dictum", observations on the law not strictly necessary
to decide the case.
The Court held against Mr. Emerson. It reversed the District Court which
had dismissed the charge against him. That court dismissed on the grounds
that Mr. Emerson's right to keep and bear arms was personal, and the
federal statute under which he was charged could not be allowed to
infringe that right under the circumstances his case presented.
Reversing, the 5th Circuit agreed that his Second Amendment right to keep
and bear arms was personal, but that, under the circumstances, the federal
statute he was held to have violated could Constitutionally incriminate
In other words, the 5th Circuit could have said,
"It does not matter whether the Second
Amendment protects for Mr. Emerson a personal right to keep and bear arms.
If it does not, the statute may operate and his conviction is valid. If it
does, under the circumstances presented, the statute does not present a
Constitutionally impermissible infringement on that right, and his
conviction is valid nevertheless."
A SIGNAL TO THE SUPREME COURT
Many who absorb the rationale of the Emerson decision will be angry,
offended that what appear minimalist and legalistic transgressions have
been held to suffice to deprive Mr. Emerson of a Constitutional right the
Court confesses is his. Their indignation will be similarly
The case, as the 5th Circuit left it, fairly begs for an appeal by Emerson
to the United States Supreme Court.
The 5th Circuit indicates a desire not to establish its opinion as federal
law only in the states its jurisdiction encompasses, but nationwide. Only
by getting its opinion reversed by the United States Supreme Court,
specifically on grounds that the case's circumstances do not suffice to
deprive Mr. Emerson of his Second Amendment right, can it do so.
Without, in this brief comment, tracing the fine points involved in that
question, that appears to be what the 5th Circuit sets about doing.
Very generally and not all-inclusively, the question whether Emerson's
circumstances suffice to allow the federal statute to deprive him of his
Second Amendment right addresses itself to a very subtle and nebulous area
of the law, that of whether Emerson received due process of law under the
Fifth Amendment. An even greater level of complexity is imposed by the
fact that the answer may involve a maddening doctrine that has borne
various labels while inflicting innumerable headaches on lawyers and
jurists, but is generally called "substantive due process."
"Substantive due process" asks not only whether a defendant's
conviction resulted from application of the pertinent written laws, but
also whether those laws are at least minimally fair ones.
This is a standard the Supreme Court tends to resolve on a case-by-case
basis, protestations of consistency notwithstanding. Accordingly, it tends
to reserve disposition of cases involving "substantive due
process" and important enough to warrant attention, to its own
Assuming, as it appears, it is eyeing an appeal to the Supreme Court, and
hopes its Second Amendment view will be adopted as rationale, not simply
obiter dictum, and thus hopes to be reversed on the due-process or
"substantive due process" element of the case, the opinion
rendered not only virtually guarantees an appeal by Emerson, but also
shrewdly leaves the due-process issue (or substantive-due-process issue)
to the Supreme Court, while making a formidable, possibly irrefutable
argument for its (the 5th
Circuit's) view of the Second Amendment's meaning.
Of two close and hard issues, it took the easier and left the harder to be
resolved by its superiors.
In doing so, however, the 5th Circuit virtually begged the Supreme Court
for a reversal of its due-process holding. It held that the Texas statutes
involved just barely satisfied due process requirements, and even declared
itself uneasy with that decision. Indeed, its reasoning included a rather
blatant and vulnerable boost to the due-process sufficiency of the
statutory scheme, holding that a finding Mr. Emerson must have presented a
danger to his estranged wife, or child, or presented them a realistic fear
of danger, because Texas law tells Texas courts not to issue
anti-stalking-and-harassment injunctions unless they so find.
That is a patent reach, essentially holding that because the Texas court
decided as it did, issuing the order that triggered the federal statute
under which Emerson was charged and convicted, then the Texas court must
have been right. It was on this shaky point, not the District Court's
Second Amendment ground, that the 5th Circuit reversed -- and invited the
Supreme Court to reverse in turn.
NOT FOR RELIANCE
At this time, since the 5th Circuit's Second Amendment rationale is,
strictly speaking, obiter dictum rather than rationale dictating the
result reached, nobody within the states the 5th Circuit's jurisdiction
encompasses should exercise Second Amendment rights based on the decision.
Certainly, no one from other states should do so -- at least, a
law-school-graduate but practice-retired, unlicensed commentator should
add, not without precise advice of a competent, licensed attorney at law.
But for the moment, advocates of individual rights to keep and bear arms
should celebrate a significant academic victory, and wait with patience
and improved hopes to see whether the Supreme Court will so dispose of the
due-process issue as to make it settled law nationwide.
This story is reprinted from Keep And Bear
Arms. For more 2nd Amendment Information visit Articles at http://www.keepandbeararms.com