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Second Amendment unrelated to decision

Regarding the 5th Circuit Court of Appeals decision regarding the Second Amendment (U.S. v. Emerson):



It’s an interesting case, but the right of individual gun ownership is not central. The question here is: Do people who are under court orders to refrain from harassing or threatening behavior still retain Second Amendment rights to possess firearms?




Emerson’s wife filed for divorce and obtained a court order enjoining his harassing or threatening behavior. Subsequently, Emerson threatened his wife and daughter with a firearm. A search of his residence produced two Beretta pistols, an M-1 carbine and two assault rifles. He was indicted under U.S. Code 922(g)(8)(ii)… (it is unlawful for anyone, who is under a court order restraining them from harassing or threatening use of force, to possess firearms). Emerson petitioned the District Court to dismiss his indictment because 922(g)(8) violated his constitutional right to possess firearms. The court agreed.

The government appealed, and the U.S. 5th Circuit Court reversed the District Court. The 5th Circuit recognized the right to bear arms is subject to reasonable regulation, and held 922(g)(8) can restrict ownership of firearms by persons subject to court orders. The court noted that 922(g)(8) was at issue, not whether the right to possess firearms is collective or individual.

The majority opinion then continued on to develop arguments supporting an individual’s right to possess firearms. However, the minority opinion called this exercise worthless, since nothing in the case turns on the original meaning of the Second Amendment, and therefore, no other court need follow the majority opinion in that regard. Also, nine sister U.S. Circuit Courts hold that the Second Amendment is a right held by the states and does not protect individual ownership of firearms.

The majority’s remarks regarding individual rights to own guns are of academic interest only and establish no legal basis for such rights. This court opinion is hardly a “landmark” decision concerning the Second Amendment. See (www.ca5.uscourts.gov)(United States vs Emerson, Docket No. 99-10331,11/2/01)

William J. Clark

Grass Valley


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