Second Amendment Protects Individual Right
by Larry Pratt

The U.S. Fifth Circuit Court of Appeals has finally rendered an opinion
in
the Emerson case (U.S. v. Emerson). The verdict? Yes, the Second
Amendment
protects an individual right to keep and bear arms.

No, the Court argued, the Second Amendment does not protect some
collective
right of a state to have a militia.

In a backhanded fashion, the Court answered the question about what does

“infringed” mean, as in, “… the right of the people to keep and bear
arms
shall not be infringed.” Answer? Infringed means that law-abiding
citizens
cannot have their gun rights denied.

According to the court, however, this amendment does not protect the
ever-expanding group of people legislated into an excluded category.
Examples of constitutional exclusions are felonies, domestic violence
misdemeanors and restraining orders.

Emerson was accused of brandishing a firearm at his estranged wife, and
this led to the issuance of a restraining order. When he subsequently
bought a firearm, he was in violation of the federal statute barring
possession of firearms while under a restraining order. Subsequent to
the
prosecution of the federal charge, Emerson has been acquitted of related

state charges.

The Court carried out an extensive review of the Second Amendment
literature, much of which has appeared in law school journals during the

last several years. They also took a long look at the Miller case from
the
1930′s which dealt with possession of an unregistered machine gun.

The Fifth Circuit determined that while the Miller case is somewhat
ambiguous, it by no means should be seen as undermining an individual
right
to keep and bear arms interpretation of the Second Amendment.

The Court put it like this:

We reject the collective rights… models for interpreting the
Second Amendment. We hold, consistent with Miller, that it
protects the right of individuals, including those not then
actually a member of any militia or engaged in active military
service or training, to possess and bear their own firearms, such
as the pistol involved here, that are suitable as personal,
individual weapons and are not of the general kind or type
excluded by Miller.

The Court went on to rule that depriving Emerson of ownership of his
guns
because of the restraining order against him did not infringe his Second

Amendment right to keep and bear arms.

In a terse statement the Court held that they were not going to rule on
the constitutionality of depriving Emerson of his gun rights, due of a
restraining order, under the Tenth Amendment. Their reasoning put the
blame squarely on Emerson and his attorney — they did not raise the
Tenth
Amendment in their appeal.

I agree that this was a serious error on Emerson’s part, because this is

probably the most pro-Tenth Amendment court in the land. Had Emerson
argued that, under the Tenth Amendment, restraining orders in divorce
proceedings are not a power delegated to the federal government, the
Fifth
Circuit would likely have agreed with the trial court that Emerson’s
constitutional rights were violated, even if for different reasons.

The trial court said Emerson’s rights had been violated under the Second

Amendment, but not under the Tenth. The Circuit court ruled that his
Second Amendment individual right was not violated, but they likely
would
have tossed the federal law out under the Tenth Amendment.

Now, the matter goes back to the trial court. Should the prosecutor
choose to press on, Emerson could face years more of being in court.
This
is possible in spite of the restraining order having been lifted, the
divorce being final and the state related charges having been rejected
by
a jury.