UNITED STATES OF AMERICA
TIMOTHY JOE EMERSON
Criminal Action No. 6:98-CR-103-C
AMENDED MEMORANDUM OPINION [see footnote 1]
Defendant Timothy Joe Emerson ("Emerson") moves to
dismiss the Indictment against him, claiming that the statute
he is prosecuted under, 18 U.S.C. § 922(g)(8), is an unconstitutional exercise of congressional power under the
Commerce Clause and the Second, Fifth, and Tenth Amendments to the United States Constitution. For the reasons
stated below, the Court GRANTS Emerson’s Motion to Dismiss.
On August 28, 1998, Emerson’s wife, Sacha, filed
a petition for divorce and application for a temporary
restraining order in the 119th District Court of Tom Green County, Texas. The petition stated no factual basis for
relief other than the necessary recitals required under the Texas Family Code regarding domicile, service of
process, dates of marriage and separation, and the "insupportability" of the marriage. The application for a
temporary restraining order—essentially a form order frequently used in Texas divorce procedure—sought to
enjoin Emerson from engaging in various financial transactions to maintain the financial status quo and from
making threatening communications or actual attacks upon his wife during the pendency of the divorce proceedings.
On September 4, 1998, the Honorable John E. Sutton
held a hearing on Mrs. Emerson’s application for a temporary
restraining order. Mrs. Emerson was represented by an attorney at that hearing, and Mr. Emerson appeared pro se.
Mrs. Emerson testified about her economic situation, her needs in the way of temporary spousal support and child
support, and her desires regarding temporary conservatorship of their minor child.
During the hearing, Mrs. Emerson alleged that her
husband threatened over the telephone to kill the man with whom
Mrs. Emerson had been having an adulterous affair. However, no evidence was adduced concerning any acts of
violence or threatened violence by Mr. Emerson against any member of his family, and the district court made no
findings to that effect. Furthermore, the court did not admonish Mr. Emerson that if he granted the temporary
restraining order, Mr. Emerson would be subject to federal criminal prosecution merely for possessing a firearm
while being subject to the order.
As stated above, Emerson was indicted for possession
of a firearm while being under a restraining order, in
violation of 18 U.S.C. § 922(g)(8) ("the Act"). This statute states that:
(g) It shall be unlawful for any person--
(8) who is subject to a court order that--
(A) was issued after a hearing of which such person received actual
notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an
intimate partner of such person or child of such intimate partner or person,
or engaging in other conduct that would place an intimate partner in
reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat
the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened
use of physical force against such intimate partner or child that would
reasonably be expected to cause bodily injury . . . .
18 U.S.C. § 922(g)(8).
Emerson argues that 18 U.S.C. § 922(g)(8) is
an unconstitutional exercise of congressional power under the
Commerce Clause and the Second, Fifth, and Tenth Amendments to the United States Constitution. The Court will
address these arguments seriatim.
Emerson first argues that 18 U.S.C. § 922(g)(8)
is an unconstitutional exercise of congressional power under the
Commerce Clause of the United States Constitution. U.S. CONST. art. I, § 8, cl. 3. Pursuant to the Supreme Court’s
holding in United States v. Lopez, 514 U.S. 549 (1995), Emerson argues that the Act is unconstitutional because it
does not regulate commercial activity.
However, the Fifth Circuit Court of Appeals has examined
the validity of 18 U.S.C. § 922(g)(8) under a Commerce
Clause challenge and has held that the Act is constitutional. United States v. Pierson, 139 F.3d 501 (5th Cir. 1998).
Accordingly, Emerson cannot sustain a Motion to Dismiss under a Commerce Clause challenge.
Emerson claims that 18 U.S.C. § 922(g)(8) violates
his rights under the Second Amendment to the United States
Constitution. The Second Amendment states that:
well regulated Militia, being necessary to the security of a free State,
the right of the people
to keep and bear Arms, shall not beinfringed.
U.S. CONST. amend. II.
Only if the Second Amendment guarantees Emerson a
personal right to bear arms can he claim a constitutional
violation. Whether the Second Amendment recognizes an individual right to keep and bear arms is an issue of first
impression within the Fifth Circuit. Emerson claims that he has a personal right to bear arms which the Act
infringes, while at oral argument on the Motion to Dismiss, the Government claimed it is "well settled" that the
Second Amendment creates a right held by the States and does not protect an individual right to bear arms.
Second Amendment Schools of Thought
Two main schools of thought have developed on the
issue of whether the Second Amendment recognizes individual
or collective rights. These schools of thought are referred to as the "states’ rights," or "collective rights," school
and the "individual rights" school. The former group cites the opening phrase of the amendment, along with
subsequent case law, as authority for the idea that the right only allows states to establish and maintain militias,
and in no way creates or protects an individual right to own arms. David E. Johnson, Note, Taking a Second Look
at the Second Amendment and Modern Gun Control Laws, 86 KY. L.J. 197, 198 (1997-98) (citing Andrew D. Herz,
Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U. L. REV. 57
(1995)). Due to changes in the political climate over the last two centuries and the rise of National Guard
organizations among the states, states’ rights theorists argue that the Second Amendment is an anachronism, and that
there is no longer a need to protect any right to private gun ownership.
The individual rights theorists, supporting what
has become known in the academic literature as the "Standard
Model," argue that the amendment protects an individual right inherent in the concept of ordered liberty, and resist
any attempt to circumscribe such a right. Id. (citing Glenn Harlan Reynolds, A Critical Guide to the Second
Amendment, 62 TENN. L. REV. 461, 464-88 (1995); Robert Dowlut, The Right to Keep and Bear Arms: A Right to
Self-Defense Against Criminals and Despots, 8 STAN. L. & POL'Y REV. 25 (1997)).
A textual analysis of the Second Amendment supports
an individual right to bear arms. A distinguishing
characteristic of the Second Amendment is the inclusion of an opening clause or preamble, which sets out its
purpose. No similar clause is found in any other amendment. Stanford Levinson, The Embarrassing Second
Amendment, 99 YALE L.J. 637, 644 (1989). While states’ rights theorists seize upon this first clause to the
exclusion of the second, both clauses should be read in pari materia, to give effect and harmonize both clauses,
rather than construe them as being mutually exclusive.
The amendment reads "[a] well regulated Militia,
being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed." U.S. CONST. amend. II. Within the amendment are two
distinct clauses, the first subordinate and the second independent. If the amendment consisted solely of its
independent clause, "the right of the people to keep and bear Arms, shall not be infringed," then there would be no
question whether the right is individual in nature. David E. Johnson, Note, Taking a Second Look at the Second
Amendment and Modern Gun Control Laws, 86 KY. L.J. 197, 200 (1997-98).
Collective rights theorists argue that addition of
the subordinate clause qualifies the rest of the amendment by
placing a limitation on the people’s right to bear arms. Id. However, if the amendment truly meant what collective
rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a
free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the
framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom,
shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be
protected. Id. The right exists independent of the existence of the militia. If this right were not protected, the
existence of the militia, and consequently the security of the state, would be jeopardized. Id. at 201.
The Supreme Court recently interpreted the text of
the Second Amendment and noted that the phrase "the people" in
the Second Amendment has the same meaning in both the Preamble to the Constitution and in the First, Fourth,
Fifth, and Ninth Amendments. United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). The Court held that
the phrase "the people" "seems to have been a term of art employed in select parts of the Constitution."
Second Amendment protects "the right of the people to keep and bear Arms,"
Ninth and Tenth Amendments provide that certain rights and powers are retained by and
reserved to "the people."
* * *
this textual exegesis is by no means conclusive, it suggests that "the
by the Fourth Amendment, and by the First and Second Amendments, . . . refers to a class of
persons who are part of a national community or who have otherwise developed sufficient
connection with this country to be considered part of that community. See United States ex rel.
Turner v. Williams, 194 U.S. 279, 292 (1904).
The Court has also held that given their contemporaneous
proposal and passage, the amendments of the Bill of
Rights should be read in pari materia, and amendments which contain similar language should be construed
similarly. Patton v. United States, 281 U.S. 276, 298 (1930), cited by David Harmer, Securing a Free State: Why the
Second Amendment Matters, 1998 BYU L. REV. 55, 61 (1998). The Court’s construction of "the people" as used in
the Second Amendment supports a holding that the right to keep and bear arms is a personal right retained by the
people, as opposed to a collective right held by the States. Thus, a textual analysis of the Second Amendment
clearly declares a substantive right to bear arms recognized in the people of the United States.
"[T]here is a long tradition of widespread lawful
gun ownership by private individuals in this country." Staples v.
United States, 511 U.S. 600, 610 (1994). A historical examination of the right to bear arms, from English
antecedents to the drafting of the Second Amendment, bears proof that the right to bear arms has consistently been,
and should still be, construed as an individual right.
A review of English history explains the founders’
intent in drafting the Second Amendment. As long ago as 690
A.D., Englishmen were required to possess arms and to serve in the military. David T. Hardy, Armed Citizens,
Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 HARV. J.L. & PUB. POL’Y 559, 562 (1986)
(citing 1 JOHN J. BAGLEY & PETER B. ROWLEY, A DOCUMENTARY HISTORY OF ENGLAND
1066-1540, at 152 (1965)). This obligation continued for centuries, requiring nobility, and later commoners, to
keep arms and participate in the militia. Id. at 563-65. The obligation to keep arms was not simply to provide
military service in the king’s army; English citizens were also required to provide local police services, such as
pursuing criminals and guarding their villages. CLAYTON E. CRAMER, FOR THE DEFENSE OF
THEMSELVES AND THE STATE: THE ORIGINAL INTENT AND JUDICIAL INTERPRETATION OF THE
RIGHT TO KEEP AND BEAR ARMS 24-25 (1994); JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS:
THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 2 (1994).
By the middle of the seventeenth century, however,
the sovereign jeopardized the individual right to bear arms.
Charles II, and later James II, began to disarm many of their Protestant subjects. Hardy, supra, at 574-79. James II
was an unpopular king whose policies stirred great resentment among both the political and religious communities
of England. David E. Murley, Private Enforcement of the Social Contract: Deshaney and the Second Amendment
Right to Own Firearms, 36 DUQ. L. REV. 15, 19 (1997). Eventually, James II fled England during what was later
termed the Glorious Revolution. Hardy, supra, at 579. In the aftermath of the Glorious Revolution, Parliament
passed the English Bill of Rights in 1689, codifying the individual right to bear arms. Id. at 580. The Bill of Rights
provided that "the subjects which are Protestant may have arms for their defense suitable to their conditions and as
allowed by law." Id. at 581.
The Colonial Right To Bear Arms
The American colonists exercised their right to bear
arms under the English Bill of Rights. Indeed, the English
government’s success in luring Englishmen to America was due in part to pledges that the immigrants and their
children would continue to possess "all the rights of natural subjects, as if born and abiding in England."
MALCOLM, supra, at 138. As in England, the colonial militia played primarily a defensive role, with armies of
volunteers organized whenever a campaign was necessary. Id. at 139. Statutes in effect bore evidence of an
individual right to bear arms during colonial times. For example, a 1640 Virginia statute required "all masters of
families" to furnish themselves and "all those of their families which shall be capable of arms . . . with arms both
offensive and defensive." Id. (citing THE OLD DOMINION IN THE SEVENTEENTH CENTURY: A
DOCUMENTARY HISTORY OF VIRGINIA, 1606-1689, at 172 (Warren M. Billings ed., 1975). A 1631 Virginia
law required "all men that are fittinge to beare armes, shall bring their pieces to church . . . for drill and target
practice." Hardy, supra, at 588 (quoting 1 WILLIAM W. HENING, THE STATUTES AT LARGE: BEING A
COLLECTION OF ALL THE LAWS OF VIRGINIA FROM THE FIRST SESSION OF THE LEGISLATURE IN
THE YEAR 1619, at 173-74 (reprint. 1969) (1823). These laws served the twofold purpose of providing
individual self-defense while giving England a reserve force available in time of war. Murley, supra, at 20.
Following the French and Indian War, England increased
taxes and stationed a large army in the colonies. On April
3, 1769, the Boston Evening Post announced that colonial authorities urged the citizenry to take up arms. In reply to
the claim that this request was unlawful, the newspaper observed that:
is certainly beyond human art and sophistry, to prove the British subjects,
to whom the
privilege of possessing arms as expressly recognized by the Bill of Rights, and who live in a
province where the law requires them to be equipped with arms, are guilty of an illegal act, in
calling upon one another to be provided with them, as the law directs.
Hardy, supra, at 589-90 (quoting OLIVER M. DICKERSON,
BOSTON UNDER MILITARY RULE 61 (1936)).
Shortly after the "Boston Tea Party," British soldiers, led by General Gage, attempted to disarm the colonists.
MALCOLM, supra, at 144. The British Parliament banned all exports of muskets and ammunition to the colonies
and began seizing the colonists’ weapons and ammunition. Id. The British efforts to disarm the colonists hardened
American resistance. At that point, the colonists began to form the "minutemen," a nationwide select militia
organization. Hardy, supra at 890. In February 1775, a colonial militia prevented the British from seizing weapons
at an armory in Salem, Massachusetts. Two months later, the colonists defeated British troops at Concord. Id. at
591. Distinguished colonial leaders, such as George Washington and Samuel Adams, strongly influenced the
organization of these local militias. STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE
EVOLUTION OF A CONSTITUTIONAL RIGHT 60-61 (1984).
The "militia" which won the Revolutionary War consisted
of all who were treated as full citizens of the
community. George Mason stated, "Who are the militia? They consist now of the whole people." Sanford Levinson,
The Embarrassing Second Amendment, 99 Yale L.J. 637, 647 (1989) (citing statement of George Mason (June 14,
1788), in 3 JONATHAN ELLIOTT, DEBATES IN THE GENERAL STATE CONVENTIONS 425 (3d ed. 1937)).
Similarly, the Federal Farmer referred to a "militia, when properly formed, [as] in fact the people themselves." Id.
(quoting RICHARD HENRY LEE, OBSERVATIONS LEADING TO A FAIR EXAMINATION OF THE
SYSTEM OF GOVERNMENT PROPOSED BY THE LATE CONVENTION: LETTERS FROM THE FEDERAL
FARMER TO THE REPUBLICAN 123 (Walter H. Bennett ed., 1978)).
The individual right to bear arms, a right recognized
in both England and the colonies, was a crucial factor in the
colonists’ victory over the British army in the Revolutionary War. Without that individual right, the colonists never
could have won the Revolutionary War. After declaring independence from England and establishing a new
government through the Constitution, the American founders sought to codify the individual right to bear arms, as
did their forebears one hundred years earlier in the English Bill of Rights.
The Ratification Debates
A foundation of American political thought during
the Revolutionary period was the well justified concern about
political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them
of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the
framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of
Massachusetts expressed this sentiment by declaring that it is "a chimerical idea to suppose that a country like this
could ever be enslaved . . . Is it possible . . . that an army could be raised for the purpose of enslaving themselves
or their brethren? or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and
who have arms in their hands?" MALCOLM, supra at 157 (citing 2 JONATHAN ELLIOT, THE DEBATES IN
THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 97 (2d
ed. 1863)). Noah Webster similarly argued:
a standing army can rule the people must be disarmed; as they are in almost
kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword;
because the whole body of the people are armed, and constitute a force superior to any band of
regular troops that can be, on any pretence, raised in the United States.
Id. (citing NOAH WEBSTER, AN EXAMINATION INTO THE
LEADING PRINCIPLES OF THE FEDERAL
CONSTITUTION (1787), reprinted in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES,
PUBLISHED DURING ITS DISCUSSION BY THE PEOPLE, 1787-1788, at 56 (Paul L. Ford, ed. 1971) (1888)).
Richard Lee Henry’s view that a well regulated militia was the entire armed populace rather than a select body of
men was reiterated by proponents to a bill of rights. As "M.T. Cicero" wrote to "The Citizens of America":
therefore, the profession of arms becomes a distinct order in the state
. . . the end of
the social compact is defeated . . . .
free government was ever founded, or ever preserved its liberty, without
characters of the citizen and the soldier in those destined for the defence of the state . . . . Such
are a well regulated militia, composed of the freeholders, citizen and husbandman, who take
up arms to preserve their property, as individuals, and their rights as freemen.
HALBROOK, supra at 72 (citing STATE GAZETTE (Charleston),
Sept. 8, 1788).
George Mason argued the importance of the militia
and right to bear arms by reminding his compatriots of
England’s efforts "to disarm the people; that it was the best and most effectual way to enslave them . . . by totally
disusing and neglecting the militia." Id. at 74 (citing 3 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL
STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 380 (2d ed. 1863)). He
also clarified that under prevailing practice the militia included all people, rich and poor. "Who are the militia?
They consist now of the whole people, except a few public officers." Id. (citing 3 ELLIOT at 425-26). Because all
were members of the militia, all enjoyed the right to individually bear arms to serve therein.
The framers thought the personal right to bear arms
to be a paramount right by which other rights could be
protected. Therefore, writing after the ratification of the Constitution, but before the election of the first Congress,
James Monroe included "the right to keep and bear arms" in a list of basic "human rights" which he proposed to be
added to the Constitution. HALBROOK, supra at 223 n. 145 (citing James Monroe Papers, New York Public
Library (Miscellaneous Papers of James Monroe)).
The framers also saw an armed populace as the safeguard
of religious liberty. Zachariah Johnson told the Virginia
convention their liberties would be safe because
people are not to be disarmed of their weapons. They are left in full possession
The government is administered by the representatives of the people, voluntarily and freely
chosen. Under these circumstances should anyone attempt to establish their own system [of
religion], in prejudice of the rest, they would be universally detested and opposed, and easily
frustrated. This is the principle which secures religious liberty most firmly. The government
will depend on the assistance of the people in the day of distress.
MALCOLM, supra at 157 (citing 3 ELLIOT 646)).
Patrick Henry, also in the Virginia convention, eloquently
argued for the dual rights to arms and resistance to
oppression: "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.
Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined."
HALBROOK, supra at 73 (citing 3 ELLIOT at 45). Thus, the federalists agreed with Blackstone that an armed
populace was the ultimate check on tyranny. MALCOLM, supra at 157.
While both Monroe and Adams supported ratification
of the Constitution, its most influential framer was James
Madison. In The Federalist No. 46, he confidently contrasted the federal government of the United States to the
European despotisms which he contemptuously described as "afraid to trust the people with arms." He assured his
fellow citizens that they need never fear their government because of "the advantage of being armed." Don B.
Kates, Jr., Handgun Prohibition and The Original Meaning of The Second Amendment, 82 MICH. L. REV. 204, 228
(1983) (quoting THE FEDERALIST NO. 46, at 371 (James Madison) (John. C. Hamilton ed., 1864)). Many years
later, Madison restated the sentiments of The Federalist No. 46 by declaring: "[A] government resting on a
minority is an aristocracy, not a Republic, and could not be safe with a numerical and physical force against it,
without a standing army, an enslaved press, and a disarmed populace." Id. (quoting RALPH L. KETCHAM,
JAMES MADISON: A BIOGRAPHY 64, 640 (1971)).
Although on the other side of the ratification debate,
Anti-Federalist Patrick Henry was unequivocal on the
individual right to bear arms. During the Virginia ratification convention, he objected to the Constitution’s
inclusion of clauses specifically authorizing a standing army and giving the federal government control of the
militia. He also objected to the omission of a clause forbidding disarmament of the individual citizen: "The great
object is that every man be armed . . . . [e]veryone who is able may have a gun." Id. at 229 (citing 3 J. ELLIOTT,
supra, at 45).
By January of 1788, Delaware, Pennsylvania, New Jersey,
Georgia and Connecticut ratified the Constitution
without insisting upon amendments. Several specific amendments were proposed, but were not adopted at the time
the Constitution was ratified. The Pennsylvania convention, for example, debated fifteen amendments, one of which
concerned the right of the people to be armed, another with the militia. The amendment on the right to bear arms
the people have a right to bear arms for the defence of themselves and
their own State, or
the United States, or for the purpose of killing game; and no law shall be passed for disarming
the people or any of them, unless for crimes committed, or real danger of public injury from
individuals; and as standing armies in time of peace are dangerous to liberty, they ought not to
be kept up; and that the military shall be kept under strict subordination to and be governed by
the civil power.
MALCOLM, supra at 158 (citing PENNSYLVANIA AND THE
FEDERAL CONSTITUTION, 1787-1788, at
The Massachusetts convention also ratified the Constitution
with an attached list of proposed amendments. Id. In
the end, the ratification convention was so evenly divided between those for and against the Constitution that the
federalists agreed to amendments to assure ratification. Id. Samuel Adams proposed that the Constitution
never construed to authorize Congress to infringe the just liberty of the
press, or the rights
of conscience; or to prevent the people of the United States, who are peaceable citizens, from
keeping their own arms; or to raise standing armies, unless when necessary for the defence of
the United States, or of some one or more of them; or to prevent the people from petitioning, in
a peaceable and orderly manner, the federal legislature, for a redress of their grievances: or to
subject the people to unreasonable searches and seizures.
Id. (citing DEBATES AND PROCEEDINGS IN THE CONVENTION
OF THE COMMONWEALTH OF
MASSACHUSETTS, HELD IN THE YEAR 1788, at 198-99 (Bradford Pierce and Charles Hale, ed., 1856)).
Other states which had not yet ratified the Constitution
followed the Maryland convention’s practice of ratifying the
Constitution while submitting proposed amendments. The New Hampshire convention, for example, adopted the
nine Massachusetts amendments and added three others: one to limit standing armies, a second to ensure an
individual right to bear arms, and a third to protect freedom of conscience. Id. The proposed amendment on
freedom to bear arms read: "Congress shall never disarm any Citizen unless such as are or have been in Actual
Rebellion." Id. at 158-59 (citing 2 DOCUMENTARY HISTORY OF THE CONSTITUTION OF THE UNITED
STATES, 1787-1870, at 143 (1894)).
Drafting the Second Amendment
When the first Congress convened on March 4, 1789,
James Madison, who had previously advocated passage of
the Constitution without amendments, now pressed his colleagues to act on a bill of rights. MALCOLM, supra at
159. When his initial efforts failed to produce any response, he drafted his own version of a bill of rights and
presented them to members of Congress on June 8 of that year. Id. He explained to Jefferson that he deliberately
drafted the amendments to be unexceptional and therefore likely to win approval. Id. (citing RONALD RUTLAND,
THE BIRTH OF THE BILL OF RIGHTS 209 (1991)). His version of what would later be the second amendment
right of the people to keep and bear arms shall not be infringed; a well
armed, and well
regulated militia being the best security of a free country: but no person religiously scrupulous
of bearing arms, shall be compelled to render military service in person.
MALCOLM, supra at 159.
That Madison envisioned a personal right to bear
arms, rather than merely a right for the states to organize militias,
is evident from his desired placement of the right in the Constitution. Madison’s original plan was to designate the
amendments as inserts between specific sections of the existing Constitution, rather than as separate amendments
added to the end of the document. Hardy, supra at 609 (citing 1 ANNALS OF CONGRESS 707-08 (Joseph Gales
ed., 1789)). Madison did not designate the right to keep and bear arms as a limitation of the militia clause of
Section 8 of Article I. Rather, he placed it as part of a group of provisions (with freedom of speech and the press)
to be inserted in "Article 1st, Section 9, between Clauses 3 and 4." Id. (quoting 5 DOCUMENTARY HISTORY
OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 186-87 (1905)). Such a designation would
have placed this right immediately following the few individual rights protected in the original Constitution,
dealing with the suspension of bills of attainder, habeas corpus, and ex post facto laws. Thus Madison aligned the
right to bear arms along with the other individual rights of freedom of religion and the press, rather than with
congressional power to regulate the militia. Id. This suggested placement of the Second Amendment reflected
recognition of an individual right, rather than a right dependent upon the existence of the militia.
At that point, the Senate took up the Bill of Rights.
Unfortunately, Senate debate on the issue was held in secret, and
therefore no record exists of that body’s deliberations. CRAMER, supra at 58 (citing HELEN VEIT ET AL.,
CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL
CONGRESS xix (1991)). The Senate form of the second amendment now described the militia not as "the best
security" of a free state, but as "necessary to the security" of a free state, an even stronger endorsement than
Madison’s original description. MALCOLM, supra at 161. The Senators also omitted the phrase describing the
militia as "composed of the body of the people." Elbridge Gerry’s fear that future Congresses might expand on the
religious exemption clause evidently convinced the Senate to eliminate that clause as well. Id. Even more
important, however, was the Senate’s refusal of a motion to add "for the common defense" after the phrase "to keep
and bear arms." Id. (citing HALBROOK, supra at 81, n. 167). Thus the American Bill of Rights, like the English
Bill of Rights, recognized the individual’s right to have weapons for his own defense, rather than for collective
defense. Id. In this form, Congress approved the Second Amendment and sent the Bill of Rights to the state
legislatures for ratification. Id.
In retrospect, the framers designed the Second Amendment
to guarantee an individual’s right to arms for
self-defense. Such an individual right was the legacy of the English Bill of Rights. American colonial practice, the
constitutional ratification debates, and state proposals over the amendment all bear this out. Id. at 162. The
American Second Amendment also expanded upon the English Bill of Rights’ protection; while English law
allowed weapons "suitable to a person’s condition" "as allowed by law," the American right forbade any
"infringement" upon the right of the people to keep and bear arms. Id.
In his influential Commentaries on the Constitution,
Joseph Story emphasized the importance of the Second
Amendment. He described the militia as the "natural defence of a free country" not only "against sudden foreign
invasions" and "domestic insurrections," but also against "domestic usurpations of power by rulers." He went on to
state that "[t]he right of the citizens to keep and bear arms has justly been considered as the palladium of the
liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and
will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."
3 J. Story, Commentaries § 1890, p. 746 (1833).
The structure of the Second Amendment within the
Bill of Rights proves that the right to bear arms is an individual
right, rather than a collective one. The collective rights’ idea that the Second Amendment can only be viewed in
terms of state or federal power "ignores the implication that might be drawn from the Second, Ninth, and Tenth
Amendments: the citizenry itself can be viewed as an important third component of republican governance as far as
it stands ready to defend republican liberty against the depredations of the other two structures, however futile that
might appear as a practical matter." Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637,
Furthermore, the very inclusion of the right to keep
and bear arms in the Bill of Rights shows that the framers of the
Constitution considered it an individual right. "After all, the Bill of Rights is not a bill of states’ rights, but the bill
of rights retained by the people." David Harmer, Securing a Free State: Why The Second Amendment Matters, 1998
BYU L. REV. 55, 60 (1998). Of the first ten amendments to the Constitution, only the Tenth concerns itself with the
rights of the states, and refers to such rights in addition to, not instead of, individual rights. Id. Thus the structure of
the Second Amendment, viewed in the context of the entire Bill of Rights, evinces an intent to recognize an
individual right retained by the people.
The Court notes that several other federal courts
have held that the Second Amendment does not establish an
individual right to keep and bear arms, but rather a "collective" right, or a right held by the states. See, e.g.,
Hickman v. Block, 81 F.3d 98, 100-01 (9th Cir. 1996) (holding that plaintiff lacked standing to sue for denial of
concealed weapons permit, because Second Amendment does not protect possession of weapon by private citizen;
right to bear arms is held by the states); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995) (holding that Second
Amendment does not confer absolute individual right); United States v. Warin, 530 F.2d 103, 106-07 (6th Cir.
1976) (holding that Second Amendment guarantees a collective rather than an individual right; fact that an
individual citizen, like all others, may enroll in state militia does not confer right to possess submachine gun);
Cases v. United States, 131 F.2d 916, 920-23 (1st Cir. 1942) (holding that federal government may limit the
keeping and bearing of arms by a single individual); Hamilton v. Accu-Tek, 935 F. Supp. 1307, 1318 (E.D.N.Y.
1996) (holding that Second Amendment right to bear arms establishes a collective rather than an individual or
However, the only modern Second Amendment case from
the Supreme Court is United States v. Miller, 307 U.S.
174 (1939). Jack Miller was charged with moving a sawed-off shotgun in interstate commerce in violation of the
National Firearms Act of 1934. Among other things, Miller had not registered the firearm, as required by the Act.
The court below dismissed the charge, accepting Miller’s argument that the Act violated the Second Amendment.
The Supreme Court reversed unanimously, with Justice
McReynolds writing the opinion. Interestingly enough, he
emphasized that there was no evidence showing that a sawed-off shotgun "at this time has some reasonable
relationship to the preservation or efficiency of a well regulated militia." Id. at 178. And "[c]ertainly it is not
within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute
to the common defense." Id. at 178 (citation omitted). Thus, Miller might have had a tenable argument had he been
able to show that he was keeping or bearing a weapon that clearly had a potential military use. Justice McReynolds
went on to describe the purpose of the Second Amendment as "assur[ing] the continuation and render[ing] possible
the effectiveness of [the Militia]." Id. at 178. He contrasted the Militia with troops of a standing army, which the
Constitution indeed forbade the states to keep without the explicit consent of Congress. "The sentiment of the time
strongly disfavored standing armies; the common view was that adequate defense of country and laws could be
secured through the Militia—civilians primarily, soldiers on occasion." Id. at 179. McReynolds noted further that
"the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved
commentators [all] [s]how plainly enough that the Militia comprised all males physically capable of acting in
concert for the common defense." Id.
It is difficult to interpret Miller as rendering
the Second Amendment meaningless as a control on Congress.
Ironically, one can read Miller as supporting some of the most extreme anti-gun control arguments; for example, that
the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly
used for modern warfare, including, of course, assault weapons. Under Miller, arguments about the constitutional
legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault
rifles, thus might turn on the usefulness of such guns in military settings. Sanford Levinson, The Embarrassing
Second Amendment, 99 YALE L.J. 637, 654-55 (1989).
Miller did not answer the crucial question of whether
the Second Amendment embodies an individual or collective
right to bear arms. Although its holding has been used to justify many previous lower federal court rulings
circumscribing Second Amendment rights, the Court in Miller simply chose a very narrow way to rule on the issue
of gun possession under the Second Amendment, and left for another day further questions of Second Amendment
construction. See Printz v. United States, 521 U.S. 898, 937-38 & n.1, 2 (1997) (Thomas, J., concurring).
Court has not had recent occasion to consider the nature of the substantive
safeguarded by the Second Amendment. [see footnote 2] If, however, the Second Amendment
is read to confer a personal right to "keep and bear arms," a colorable argument exists that the
Federal Government’s regulatory scheme, at least as it pertains to the purely intrastate sale or
possession of firearms, runs afoul of that Amendment’s protections. [see footnote 3]
Some scholars have argued that even if the original
intent of the Second Amendment was to provide an individual
right to bear arms, modern-day prudential concerns about social costs outweigh such original intent and should
govern current review of the amendment. However, there is a problem with such reasoning. If one accepts the
plausibility of any of the arguments on behalf of a strong reading of the Second Amendment, but, nevertheless,
rejects them in the name of social prudence and the present-day consequences of an individual right to bear arms,
why do we not apply such consequentialist criteria to each and every part of the Bill of Rights? Levinson, supra at
As Professor Ronald Dworkin has argued, what it means
to take rights seriously is that one will honor them even
when there is significant social cost in doing so. Protecting freedom of speech, the rights of criminal defendants, or
any other part of the Bill of Rights has significant costs—criminals going free, oppressed groups having to hear
viciously racist speech and so on—consequences which we take for granted in defending the Bill of Rights. This
mind-set changes, however, when the Second Amendment is concerned. "Cost-benefit" analysis, rightly or
wrongly, has become viewed as a "conservative" weapon to attack liberal rights. Yet the tables are strikingly
turned when the Second Amendment comes into play. Here "conservatives" argue in effect that social costs are
irrelevant and "liberals" argue for a notion of the "living Constitution" and "changed circumstances" that would
have the practical consequence of erasing the Second Amendment from the Constitution. Levinson, supra at
Other commentators, including Justice Scalia, have
argued that even if there would be "few tears shed if and when
the Second Amendment is held to guarantee nothing more than the state National Guard, this would simply show
that the Founders were right when they feared that some future generation might wish to abandon liberties that they
considered essential, and so sought to protect those liberties in a Bill of Rights. We may tolerate the abridgement
of property rights and the elimination of a right to bear arms; but we should not pretend that these are not reductions
of rights." Sanford Levinson, Is the Second Amendment Finally Becoming Recognized As Part of the Constitution?
Voices from the Courts, 1998 BYU L. REV. 127, 132 (1998) (quoting Antonin Scalia, Common-Law Courts in a
Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of
Interpretation: Federal Courts and the Law 3, 43 (Amy Gutmann, ed. 1997).
In response to arguments propounded by Professor
Laurence Tribe and others describing the Second Amendment
as being simply "seemingly state-militia-based" rather than "supporting broad principles" of private ownership of
guns, Justice Scalia pointed out that it is incorrect to assume that the word "militia" refers only to "‘a select group
of citizen-soldiers . . . rather than, as the Virginia Bill of Rights of June 1776 defined it, ‘the body of the people,
trained to arms."’ Antonin Scalia, Response, in A Matter of Interpretation, supra at 129, 136 n.13 (quoting JOYCE
LEE MALCOLM, TO KEEP AND BEAR ARMS 136, 148 (1994)).
Justice Scalia also notes that "[t]his was also the
conception of ‘militia’ entertained by James Madison," citing The
Federalist No. 46 for support. Id. "It would also be strange," he goes on to say, "to find in the midst of a catalog of
the rights of individuals a provision securing to the states the right to maintain a designated ‘Militia.’
Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that."
Id. at 137 n.13 (citing JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS (1994); William Van Alstyne, The
Second Amendment and the Personal Right to Arms, 43 DUKE L.J. 1236 (1994)).
Justice Scalia concludes by stating that "[i]t is
very likely that modern Americans no longer look contemptuously,
as Madison did, upon the governments of Europe that ‘are afraid to trust the people with arms,’ The Federalist No.
46; and the . . . Constitution that Professor Tribe espouses will probably give effect to that new sentiment by
effectively eliminating the Second Amendment. But there is no need to deceive ourselves as to what the original
Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the
Thus, concerns about the social costs of enforcing
the Second Amendment must be outweighed by considering the
lengths to which the federal courts have gone to uphold other rights in the Constitution. The rights of the Second
Amendment should be as zealously guarded as the other individual liberties enshrined in the Bill of Rights.
Constitutionality of 18 U.S.C. § 922(g)(8)
18 U.S.C. §922(g)(8) is unconstitutional because
it allows a state court divorce proceeding, without particularized
findings of the threat of future violence, to automatically deprive a citizen of his Second Amendment rights. The
statute allows, but does not require, that the restraining order include a finding that the person under the order
represents a credible threat to the physical safety of the intimate partner or child. 18 U.S.C. § 922(g)(8)(C)(i). If
the statute only criminalized gun possession based upon court orders with particularized findings of the likelihood
of violence, then the statute would not be so offensive, because there would be a reasonable nexus between gun
possession and the threat of violence. However, the statute is infirm because it allows one to be subject to federal
felony prosecution if the order merely "prohibits the use, attempted use, or threatened use of physical force against
[an] intimate partner." 18 U.S.C. § 922(g)(8)(C)(ii).
However, prosecution based on such an order would
be tautological, for § 922(g)(8)(C)(i) merely repeats in
different wording the requirement in subsection (B) that the order "restrains such person from harassing, stalking,
or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other
conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child." §922
(g)(8)(B). All that is required for prosecution under the Act is a boilerplate order with no particularized findings.
Thus, the statute has no real safeguards against an arbitrary abridgement of Second Amendment rights. Therefore,
by criminalizing protected Second Amendment activity based upon a civil state court order with no particularized
findings, the statute is over-broad and in direct violation of an individual’s Second Amendment rights.
By contrast, §922(g)(8) is different from the
felon-in-possession statute, 18 U.S.C. § 922(g)(1), because once an
individual is convicted of a felony, he has by his criminal conduct taken himself outside the class of law-abiding
citizens who enjoy full exercise of their civil rights. Furthermore, the convicted felon is admonished in state and
federal courts that a felony conviction results in the loss of certain civil rights, including the right to bear arms.
This is not so with § 922(g)(8). Under this statute, a person can lose his Second Amendment rights not because he
has committed some wrong in the past, or because a judge finds he may commit some crime in the future, but
merely because he is in a divorce proceeding. Although he may not be a criminal at all, he is stripped of his right to
bear arms as much as a convicted felon. Second Amendment rights should not be so easily abridged.
It is absurd that a boilerplate state court divorce
order can collaterally and automatically extinguish a law-abiding
citizen’s Second Amendment rights, particularly when neither the judge issuing the order, nor the parties nor their
attorneys are aware of the federal criminal penalties arising from firearm possession after entry of the restraining
order. That such a routine civil order has such extensive consequences totally attenuated from divorce proceedings
makes the statute unconstitutional. There must be a limit to government regulation on lawful firearm possession.
This statute exceeds that limit, and therefore it is unconstitutional.
Emerson also contends that 18 U.S.C. § 922(g)(8)
violates his Fifth Amendment due process rights. He argues that
the perfunctory, generic temporary orders issued in his divorce proceedings expose him to federal criminal
liability for engaging in otherwise lawful conduct.
Firearm possession is a valuable liberty interest
imbedded in the Second Amendment to the United States
Constitution. "[T]here is a long tradition of widespread lawful gun ownership by private individuals in this
country." Staples v. United States, 511 U.S. 600, 610 (1994). Thus, Emerson has a protected liberty interest in
firearm possession under the Fifth Amendment.
"It is wrong to convict a person of a crime if he
had no reason to believe that the act for which he was convicted
was a crime, or even that it was wrongful. This is one of the bedrock principles of American law. It lies at the
heart of any civilized system of law." United States v. Wilson, 159 F.3d 280, 293 (7th Cir. 1998) (Posner, C.J.,
dissenting). It offends both substantive and procedural due process for Emerson to be convicted of a crime he did
not know existed. Because 18 U.S.C. § 922(g)(8) is such an obscure criminal provision, it is unfair to hold him
accountable for his otherwise lawful actions.
The conduct this statute criminalizes is malum prohibitum,
not malum in se. In other words, there was nothing
inherently evil about Emerson possessing a firearm while being under a domestic restraining order. His conduct
was unlawful merely because the statute mandated that it be. Wilson, 159 F.3d at 294 (Posner, C.J., dissenting).
Section 922(g)(8) is one of the most obscure of criminal provisions. Here, Emerson owned a firearm, and knew or
should have known that if, for example, he was convicted of a felony, he would have to relinquish ownership of his
firearm. If by chance he did not know this, the sentencing judge or the probation officer would have informed him
of the law. Nevertheless, when Emerson was made subject to the restraining order telling him to not harass his
wife, Emerson could not have known of the requirement to relinquish his gun unless the presiding judge issuing the
order told him. In this case, the state district judge did not tell Emerson about the requirement. Emerson’s attorney
did not tell him either, because Emerson did not have a lawyer. The fact that the restraining order contained no
reference to guns may have led Emerson to believe that since he complied with the order, he could carry on as
before. Id. at 294-95.
Chief Judge Posner of the Seventh Circuit aptly explains
the dilemma between the maxim "ignorance of the law is
no excuse" and the inherent unreasonableness of criminal prosecutions involving obscure violations of law:
want people to familiarize themselves with the laws bearing on their activities.
reasonable opportunity doesn’t mean being able to go to a local law library and read Title 18.
It would be preposterous to suppose that someone from [the defendant’s] milieu is able to take
advantage of such an opportunity. If none of the conditions that make it reasonable to dispense
with proof of knowledge of the law is present, then to intone "ignorance of the law is no
defense" is to condone a violation of fundamental principles for the sake of a modest economy
in the administration of criminal justice.
Id. at 295.
Section 922(g)(8) is also one of those "highly technical
statutes that present . . . the danger of ensnaring individuals
engaged in apparently innocent conduct," of which the Supreme Court spoke in Bryan v. United States, 524 U.S.
184, 118 S. Ct. 1939, 1946-47, 141 L.Ed.2d 197 (1998). Emerson’s case differs from Bryan because the statute in
this case is easy to understand, but it is hard to discover, which in the end compels the same result as demonstrated
by Lambert v. California, 355 U.S. 225 (1957).
In Lambert, a Los Angeles ordinance made it a crime
for a convicted felon to remain in the city for more than five
days without registering. Mrs. Lambert, a felon, failed to register. The Supreme Court held that the ordinance
violated due process when applied to a person who had no notice of a duty to report. Id. at 229. The Court found
that, while a legislative body may eliminate the mens rea from the elements of an offense, the constitutional
requirement of due process of law places limits on this practice. Id. at 228. "[T]he existence of a mens rea is the
rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Staples, 511 U.S. at
605 (citing United States v. United States Gypsum Co., 438 U.S. 422, 436-37 (1978)). However, eliminating the
mens rea requirement is such a fundamental departure from longstanding principles of criminal law that courts have
demanded an indication of legislative intent to do so. Staples, 511 U.S. at 606. Due process requires some
adequate, meaningful form of a fair warning or notice to a respondent to a protective order that he will be
committing a crime if he possesses a firearm.
Because § 922(g)(8) is an obscure, highly technical
statute with no mens rea requirement, it violates Emerson’s
Fifth Amendment due process rights to be subject to prosecution without proof of knowledge that he was violating
the statute. Accordingly, Emerson’s Motion to Dismiss the indictment as violative of the Fifth Amendment is
Emerson’s last argument claims that 18 U.S.C. §
922(g)(8) violates the Tenth Amendment. The Tenth Amendment
powers not delegated to the United States by the Constitution, nor prohibited
by it to the
States, are reserved to the States respectively, or to the people.
U.S. CONST. amend. X.
In New York v. United States, 505 U.S. 144 (1992),
the Court noted that Tenth Amendment issues can be resolved in
one of two ways. The court can first inquire whether an Act of Congress is authorized by one of the powers of
Article I of the Constitution. Id. at 155 (citing, e.g., Perez v. United States, 402 U.S. 146 (1971); McCulloch v.
Maryland, 4 Wheat 316 (1819)). In other cases the court determines whether the Act of Congress invades the
province of state sovereignty reserved by the Tenth Amendment. Id. (citing Garcia v. San Antonio Metro. Transit
Auth., 469 U.S. 528 (1985); Lane County v. Oregon, 7 Wall. 71 (1869)).
"If a power is delegated to Congress in the Constitution,
the Tenth Amendment expressly disclaims any reservation
of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is
necessarily a power the Constitution has not conferred on Congress." New York, 505 U.S. at 156 (citations
Because the Fifth Circuit has held that Congress
acted pursuant to its enumerated Commerce Clause power under
Article I, Congress therefore enacted 18 U.S.C. § 922 (g)(8) pursuant to a valid grant of power in conformity with
the Tenth Amendment. United States v. Pierson, 139 F.3d 501 (5th Cir. 1998). As mentioned previously, the court in
Pierson held that by creating a nexus between illegal firearm possession and interstate commerce, Congress
exercised its delegated power under the Commerce Clause to reach a "discrete set of firearm possessions that
additionally have an explicit connection with or effect on interstate commerce." Id. at 503. Therefore, under the
first line of inquiry set forth in New York, the statute is constitutional under the Tenth Amendment.
The Court now turns to the second line of inquiry,
whether the "Act of Congress invades the province of state
sovereignty reserved by the Tenth Amendment." New York, 505 U.S. at 155. In New York, the Court held that the
Low-Level Radioactive Waste Policy Amendments Act of 1985 unconstitutionally "commandeer[ed] the
legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program."
Id. at 176 (quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 288 (1981)).
In 1997, the Court refined this analysis by holding
in Printz v. United States that Congress may act pursuant to its
Commerce Clause powers and still violate principles of state sovereignty under the Tenth Amendment. 521 U.S.
898, 933 (1997). In Printz, the Brady Act commandeered state law enforcement officers to perform background
checks on prospective handgun owners. The Court held unconstitutional this asserted power of the Federal
Government "to impress into its service — and at no cost to itself — the police officers of the 50 states." Id. at
By passing 18 U.S.C. § 922(g)(8), however, Congress
did not violate the Tenth Amendment the way it did in New
York and Printz, because here the federal government is not requiring state legislatures to pass specific laws, nor is
it "commandeering" state governments into federal government service. Emerson argues, however, that § 922(g)(8)
interferes with the
By passing 18 U.S.C. § 922(g)(8), however, Congress
did not violate the Tenth Amendment the way it did in New
York and Printz, because here the federal government is not requiring state legislatures to pass specific laws, nor is
it "commandeering" state governments into federal government service. Emerson argues, however, that § 922(g)(8)
interferes with the ability of state judges to carry out their state's domestic relations laws, thus impermissibly
regulating an area reserved for the states. It is true the Supreme Court has noted that family law is traditionally an
area of state concern. Hisquierdo v. Hisquierdo, 439 U.S. 572,581(1979). And while it is arguable that § 922(g)(8)
may offend general Tenth Amendment principles of federalism, because Congress was acting through an
enumerated power in drafting the law, and the law does not command state activity in support of it, this statute does
not clearly violate the Tenth Amendment under the Supreme Court's holdings in New York and Printz. Accordingly,
Emerson's Tenth Amendment challenge to the statute fails.
Because 18 U.S.C. § 922(g)(8) violates the Second
and Fifth Amendments to the United States Constitution, the
Court GRANTS Emerson's Motion to Dismiss the Indictment. A judgment shall be entered in conformity with this
Dated April 7, 1999
SAM R. CUMMINGS
UNITED STATES DISTRICT JUDGE
Footnote 1. On February 26,
1999, the Court granted Defendant’s Motion to Dismiss. The following is
the Court’s memorandum opinion of the Order. Return to text of the Emerson Case.
Footnote 2. "Our most recent
treatment of the Second Amendment occurred in United States v. Miller,
307 U.S. 174 (1939), in which we reversed the District Court’s invalidation of the National Firearms
Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen’s
right to possess a sawed-off shotgun because that weapon had not been shown to be ‘ordinary military
equipment’ that could ‘contribute to the common defense.’ Id., at 178. The Court did not, however,
attempt to define, or otherwise construe, the substantive right protected by the Second Amendment."
Return to text of the Emerson Case.
Footnote 3. "Marshaling an
impressive array of historical evidence, a growing body of scholarly
commentary indicates that the ‘right to keep and bear arms’ is, as the Amendment’s text suggests, a
personal right. See, e.g., J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right
162 (1994); S. Halbrook, That Every Man Be Armed, The Evolution of a Constitutional Right (1984);
Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236 (1994); Amar,
The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992); Cottrol & Diamond, The
Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309 (1991); Levinson,
The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Kates, Handgun Prohibition and the
Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983). Other scholars, however,
argue that the Second Amendment does not secure a personal right to keep or bear arms. See, e.g., Bogus,
Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365 (1993); Williams, Civic Republicanism and the Citizen
Militia: The Terrifying Second Amendment, 101 Yale L.J. 551 (1991); Brown, Guns, Cowboys,
Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson’s The Embarrassing Second
Amendment, 99 Yale L.J. 661 (1989); Cress, An Armed Community: The Origins and Meaning of the
Right to Bear Arms, 71 J. of Am. Hist. 22 (1984). Although somewhat overlooked in our jurisprudence,
the Amendment has certainly engendered considerable academic, as well as public, debate." Return to
text of the Emerson Case.