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U.S. v. Emerson Ruling Is In
Celebrate - With Reservations

By John G. Lankford  -  October 16, 2001

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 attributed.

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 him.

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."


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 displaced. 

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 disposition. 

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.


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


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