Dateline: 10/18/01

The U.S. 5th Circuit Court of Appeals in New Orleans has ruled that the Constitution's Second Amendment guarantees the right to posses firearms to individuals rather than applying only to state militias.

The decision came as part of the court's ruling in the case of U.S. v. Emerson. In this 1998 case, Texas resident, Timothy Joe Emerson, while under a domestic violence restraining order placed on him by his estranged wife, had used a pistol in threatening to kill one his wife's friends. Emerson was subsequently indicted for violation of a 1994 federal law (18 U.S.C. § 922(g)(8).) prohibiting persons under such restraining orders from possessing firearms. Emerson appealed, claiming the conviction violated his Second Amendment right to own firearms.

The U.S. District Court for the Northern District of Texas agreed with Emerson and dismissed the indictment. The U.S. Justice Department, then under Attorney General Janet Reno, appealed the decision of the district court to the 5th Circuit Court of Appeals.

In its 77-page decision, the 5th Circuit Court ruled that the Texas district court had been wrong to dismiss the indictment due to Emerson's history and display of violent and unbalanced behavior. In other words, the court ruled against Emerson, finding his rights had not been violated by the indictment.

BUT -- in a deep, detailed and lengthy analysis of the Bill of Rights, the court finds that while Emerson's violent tendencies had, in this specific case, cost him his right to own a gun, individual, law-abiding Americans are guaranteed that right by the Second Amendment.

Based largely on the Supreme Court's 1939 decision in U.S. v. Miller, gun control advocates contend that the Second Amendment's stated right to "keep and bear arms" is granted only to the states in arming their militias, rather than to private citizens. U.S. v. Miller upheld the government's authority to prosecute a person for possession of a sawed-off shotgun. In U.S. v. Emerson, The 5th Circuit finds that U.S. v. Miller applied only to a narrow category or firearm not typically carried by individual citizens.

Addressing the granting of "rights" and "powers" in the Constitution, the justices wrote, "as used throughout the Constitution, 'the people' have 'rights' and 'powers,' but federal and state governments only have 'powers' or 'authority', never 'rights.'"

The Second Amendment states "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."

In addition, the appeals court wrote "There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words 'the people' have a different connotation within the Second Amendment than when employed elsewhere in the Constitution."

As to the underlying meaning of the Second Amendment, the justices wrote "We hold . . . that it protects the rights of individuals, including those not . . . actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms . . . that are suitable as personal, individual weapons."

The court's decision is in line with Attorney General John Ashcroft's interpretation of the Second Amendment and the Justice Department had no immediate comment on the outcome of the case.

While the court's decision will have little effect outside the 5th Circuit Court's jurisdiction of Texas, Louisiana and Mississippi, gun control opponents may now use it to their advantage in arguments in courts around the country.

• The 5th Circuit Court of Appeals Decision - U.S. v. Emerson
The court's lengthy decision presents a fascinating and educational analysis of the Bill of Rights and the intentions of the Founding Fathers in creating our Constitution.