United States v. Emerson
|This article's factual accuracy may be compromised due to out-of-date information. (November 2010)|
United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), is a decision by the United States Court of Appeals for the Fifth Circuit holding that the Second Amendment to the United States Constitution guarantees individuals the right to bear arms. The case involved a challenge to the Constitutionality of 18 U.S.C. § 922(g)(8)(C)(ii), a federal statute which prohibited the transportation of firearms or ammunition in interstate commerce by persons subject to a court order that, by its explicit terms, prohibits the use of physical force against an intimate partner or child.
The Fifth Circuit engaged in an extensive analysis of the text and history of the Second Amendment and its attendant caselaw (including many state supreme court decisions), and it ultimately determined that the Second Amendment does guarantee individuals the right to keep and bear arms. Nonetheless, the court held that the particular deprivation of the right to bear arms in the case before it did not violate the Constitution. The U.S. Supreme Court denied review of the Fifth Circuit's decision, 122 S. Ct. 2362 (2002).
In 2002, the Ninth Circuit disagreed with Emerson in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002). In 2008, the D.C. Circuit held that the Second Amendment protected an individual right, in Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) which was reviewed by the Supreme Court in District of Columbia v. Heller, 554 U.S. ___ (2008). In the District of Columbia v. Heller decision the Supreme Court ruled that the Second Amendment "protects an individual right to keep and bear arms".
Moreover, on April 20, 2009, in Nordyke v. King, 229 F.3d 1266 (9th Cir. 2009) a panel of the 9th Circuit affirmed and further expanded the Supreme Court's District of Columbia v. Heller 2nd amendment decision. The court stated that the 2nd Amendment is an individual right and is incorporated against all states. Both Judge O'Scannlain and Judge Gould concurred that "the right to bear arms is a protection against the possibility that even our own government could degenerate into tyranny, and though this may seem unlikely, this possibility should be guarded against with individual diligence. And while the Second Amendment thus stands as a protection against both external threat and internal tyranny, the recognition of the individual’s right in the Second Amendment, and its incorporation by the Due Process Clause against the states, is not inconsistent with the reasonable regulation of weaponry."
On Jul 29, 2009, the Ninth Circuit set the panel's decision aside and ordered a rehearing en banc. Nordyke v. King, 575 F.3d 890 (9th Cir. 2009). The court stated, "Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc . . . . The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." Id. at 891.
Subsequently, in McDonald v. Chicago the US Supreme Court incorporated the Second Amendment against the states ruling that the right to keep and bear arms is an individual right, mooting the remaining questions in Nordyke.
- "United States v. Emerson". Lawschool.courtroomview.com. Retrieved 2011-08-13.