March 4, 2003

As I said before, I am not terribly interested in gun control issues, and I don't want to debate what sort of gun control there should or should not be. But Constitutional Law is a hobby of mine. I already made some comments on my views on the 2nd Amendment, and I'd like to say a bit more about it.

The gun lobby rests much of its hopes on one case where they got a favorable ruling, the 5th Circuit of Appeals decision in United States v. Emerson. The problem for them is that Emerson is fatally flawed as a 2nd Amendment decision that could be binding on anyone.

Before I discuss Emerson, I want to talk a little about rights. Can someone who is in prison be deprived of rights? Certainly. The very fact that the person is in prison is a deprivation of their right to free movement or association. There is no doubt that the founding fathers intended for prisoners to be deprived of rights based on due process. If someone inflicts force on me, I have a right to inflict commensurate force on him. I can do it myself, or I can enlist the help of a bunch of my buddies. Those buddies might include police, a judge, some jurors, and a warden.

The deprivation of rights inflicted on a convicted criminal do not stop at just putting him in prison. Even if there is a private right to own guns, prisoners can be denied such a right. It would make no sense to have armed prisoners. The authors of the 2nd Amendment certainly did not intend for it to mean that you would have armed prisoners. There are a variety of possible punishments that can be applied. They can be applied while the felon is in prison, and there is no reason why they can't continue after the felon leaves prison. I see no problem with making part of the punishment be a requirement that felons cannot possess guns. (I do have a problem with ex post facto laws applied to felons, but that is not relevant here.)

There are other ways in which people can be denied rights as part of due process. A civil court can require a losing defendant to make a payment to the plaintiff even though that denies the defendant the right to property. Other sanctions can be impose on the defendant such as an order to stay away from the plaintiff's property. Having come through due process, and being commensurate force in response to improper use of force, these restrictions on rights are perfectly acceptable.

It is not even necessary for the court proceedings to be complete. A temporary injunction is a reasonable response to a due process finding that there is a likelihood of irreparable harm to one party that is greater than any irreparable harm done by the injunction to the other party. Based on the finding of likelihood that there was an improper use of force, the court can impose commensurate force necessary to prevent further harm.

So now we go back to Emerson. A court found that Emerson was a bad guy. It was not disputed. In particular, in a divorce proceeding, his wife alleged that Emerson made threats against her and threatened to kill her boyfriend. This was not disputed by Emerson. The court issued a temporary injunction granting the wife a protective order. Federal law defines some of the parameters of a protective order including restricting someone under such an order not to possess a gun which has been shipped through interstate commerce. Emerson did not dispute that he possessed a gun while under the protective order or that interstate commerce was involved. He never asked any court to modify the terms of the protective order. After he was accused of violating the protective order, he complained that his 2nd Amendment rights were violated. While under the protective order, Emerson allegedly pulled out and cocked a pistol, aiming it at his wife and child (it seems amazing he did not use it). He also allegedly told someone later that he owned an AK-47 and intended to kill his ex-wife and her friends. To a police officer he said that if any of his wife's friends were to set foot on his property they would "be found dead in the parking lot." On the day he was indicted, he was found to have "a semi-automatic M-1 carbine, an SKS assault rifle with bayonet, and a semi-automatic M-14 assault rifle." Based on these allegations, Emerson was recently found guilty of illegal possession of guns. The gun lobby still asks for contributions to "put bread on the table" for this guy, who "sacrificed far, far more than most."

Given that Emerson was found to be a bad guy who needed to have his rights restricted, an order preventing him from exercising rights is perfectly reasonable. We say that felons can't have guns on the premise that they might repeat some sort of bad behavior. Here we have someone who was found to be likely to commit specific bad behavior. His subsequent behavior is not relevant to whether there should have been a protective order, but it certainly vindicates the finding that this person was dangerous. Certainly restrictions against him at least as strong as those against felons would be reasonable.

Amazingly, considering how the gun lobby promotes this case, the Emerson court did not disagree with me on this. They said that whether or not people in general have a 2nd Amendment right to own a gun, an order preventing Emerson from owning a gun was justified and Constitutional.

Since the Appeals Court said the protective order could stand whether or not there was a 2nd Amendment right to own guns, the court never properly reached the question of whether such a right exists. Supreme Court precedent has always held that you can reach a decision that a law is unconstitutional only if you hear arguments from someone who was improperly denied a Constitutional right. There was no such hearing in this case. Even if these 2 judges went on for page after page after page on the subject, and they did go on for 84 pages, it was improper for them to come to any conclusion on the subject. The Emerson ruling even mentions its "duty to avoid Constitutional questions."

The one judge who partially dissented wrote "I choose not to join Section V, which concludes that the right to keep and bear arms under the Second Amendment is an individual right, because it is dicta and is therefore not binding on us or on any other court." There does not seem to be any counter argument in the majority opinion that states that their writings on the 2nd Amendment are anything but dicta. The majority even admits the irrelevance of the 2nd Amendment in stating, "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." They don't explain why they elaborated on the subject in the first place.

It seems clear that the only reason the 2 judges wrote the section on the 2nd Amendment was to give their input to the Supreme Court should the Court take up the case and find that it was necessary to address the 2nd Amendment (the Supreme court did not take up the case -- perhaps they felt as I do that the non-dicta portions of the Circuit opinion were obviously correct, leaving nothing of substance to discuss). The Emerson case may be interesting for its scholarly discussion of the subject, but it is not a binding decision acknowledging a personal right to own guns.

Incidentally, a similar situation occurred in the 9th Circuit decision, Silveira v. Lockyer. This decision found just the opposite as Emerson, that the 2nd Amendment "affords only a collective right to own or possess guns or other firearms." In this decision there similarly was a 3rd judge who concurred in the conclusion of the court but who refused to sign on to the 2nd Amendment argument on the basis that the court should not have reached that question. Unlike the Emerson court, the Silveira majority explicitly responded to this objection saying, "Our concurring colleague... says that we should simply decide the case on standing.... That is precisely what we do.... In fact, it is impossible to decide standing without undertaking the type of analysis which our colleague wishes us to avoid." If there had been an individual right to own guns, the court indicates it would have found that the defendants had standing to sue, thus the question is properly raised. Even though past 9th Circuit precedent clearly stated that the 2nd Amendment is only a collective right, the Silveira majority felt that the previous ruling had been called into serious question and needed to be readdressed -- they cited Emerson, Ashcroft's change of Justice Dept policy, and "the resultant flood of Second Amendment challenges in the district courts" as reasons for this. The dissenter argues that the court could have found lack of standing on the basis of the old precedent. While possibly correct, it leaves a situation where all three judges are agreeing that the 2nd Amendment is only a collective right.

Then in yet another case just a few weeks ago, Nordyke v. King, the Ninth Circuit again reaffirmed the collective right theory. The majority, though, argued that the Silveira court erred in not just basing their decision on the existing precedent. Another judge wrote a concurring opinion that stated that the old precedent should, in fact, be overthrown by an en banc panel (a 3 judge panel does not have authority to overthrow existing precedent) and should be replaced by the Emerson position. Ironically, it seems that so arguing demonstrates that the Silveira court was correct in believing that the old precedent faced a serious challenge and needed to be readdressed.

Richard M. Mathews

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