Quite a number of us have been following the U.S. v. Emerson court case pertaining to the Second Amendment. Therein, the federal trial court judge wrote one of the finest decisions ever to come out of a federal criminal court -- which tracked perfectly with the opinions of all of the Founding Fathers.

Well, we can't have any of that "Original Intent" stuff anymore, so the federal government appealed. And finally, on October 16, the U.S. Fifth Circuit Court of Appeals came out with an opinion.(1)

Because of the fine decision written by District Judge Sam Cummings at the trial court level, the Appeals Court had to track along with strictly historical material. The end result was that the opinion was not entirely good for Emerson. Still, there is a lot of very good red meat in there with those potatoes and this is one opinion that will be studied and quoted for many years to come.

Below is an excerpt from Section 9, the Analysis. This is, in effect, a synopsis of what drove the Court's thinking in this case.

The history we have recounted largely speaks for itself. We briefly summarize. The Anti-Federalists desired a bill of rights, express provision for increased state power over the militia, and a meaningful express limitation of the power of the federal government to maintain a standing army. These issues were somewhat interrelated. The prospect of federal power to render the militia useless and to maintain a large standing army combined with the absence of any specific guarantees of individual liberty frightened Anti-Federalists. But the Anti-Federalist complaint that resonated best with the people at large was the lack of a bill of rights.

In mid-1788 the Constitution was ratified unchanged and in the spring of 1789 the Federalists gained control of both houses of the First Congress. Hard core Anti-Federalists persisted in all three demands, but more moderate Anti-Federalists and the people at large were primarily focused on securing a bill of rights. Most Federalists were not really averse to a bill of rights, but, like James Madison himself, had been forced to oppose any modifications to the Constitution since it could only be ratified unchanged. The Federalists wanted to please the Anti-Federalists as much as possible without fundamentally altering the balance of federal-state power. James Madison plainly stated this goal when he submitted his proposed amendments to the House.

Given the political dynamic of the day, the wording of the Second Amendment is exactly what would have been expected. The Federalists had no qualms with recognizing the individual right of all Americans to keep and bear arms. In fact, as we have documented, one of the Federalists' favorite 1787-88 talking points on the standing army and federal power over the militia issues was to remind the Anti-Federalists that the American people were armed and hence could not possibly be placed in danger by a federal standing army or federal control over the militia. The Second Amendment's preamble represents a successful attempt, by the Federalists, to further pacify moderate Anti- Federalists without actually conceding any additional ground, i.e. without limiting the power of the federal government to maintain a standing army or increasing the power of the states over the militia.

This is not to say that the Second Amendment's preamble was not appropriate or is in any way marginal or lacking in true significance. Quite the contrary. Absent a citizenry generally keeping and bearing their own private arms, a militia as it was then thought of could not meaningfully exist. As pointed out by Thomas Cooley, the right of individual Americans to keep, carry, and acquaint themselves with firearms does indeed promote a well- regulated militia by fostering the development of a pool of firearms-familiar citizens that could be called upon to serve in the militia. While standing armies are not mentioned in the preamble, history shows that the reason a well-regulated militia was declared necessary to the security of a free state was because such a militia would greatly reduce the need for a standing army. Thus, the Second Amendment dealt directly with one of the Anti- Federalists' concerns and indirectly addressed the other two. While the hard core Anti-Federalists recognized that the Second Amendment did not assure a well-regulated militia or curtail the federal government's power to maintain a large standing army, they did not control either branch of Congress (or the presidency) and had to be content with the right of individuals to keep and bear arms.

Finally, the many newspaper articles and personal letters cited indicate that, at the time, Americans viewed the Second Amendment as applying to individuals. This is confirmed by the First Congress's rejection of amendments that would have directly and explicitly addressed the Anti- Federalists' standing army and power over the militia concerns.

We have found no historical evidence that the Second Amendment was intended to convey militia power to the states, limit the federal government's power to maintain a standing army, or applies only to members of a select militia while on active duty. All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.

We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.

. . .

We reject the collective rights and sophisticated 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 privately 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. However, because of our holding that section 922(g)(8), as applied to Emerson, does not infringe his individual rights under the Second Amendment we will not now further elaborate as to the exact scope of all Second Amendment rights.

. . .

We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia. However, for the reasons stated, we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant's Second Amendment rights. Accordingly, we reverse the district court's dismissal of the indictment on Second Amendment grounds.

1. <http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm>

It is available on the Internet at

<http://www.uhuh.com/reports/headsup/fron250.htm#USvEMERSON,MAKINGHISTORY>.

 U.S. v. EMERSON, MAKING HISTORY may be reproduced, but only in its entirety and with no alterations; and

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