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Quotes from U.S. v. Emerson
Ruling http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm
The following are exact
extracts from the above-mentioned ruling. Miller Does Not Support Collective Right Model We conclude that Miller does not
support the government's collective rights or sophisticated collective rights
approach to the Second Amendment. Indeed, to the extent that Miller
sheds light on the matter it cuts against the government's position. Nor does
the government cite any other authority binding on this panel which mandates
acceptance of its position in this respect. We turn, therefore, to an
analysis of history and wording of the Second Amendment for guidance. In
undertaking this analysis, we are mindful that almost all of our sister circuits
have rejected any individual rights view of the Second Amendment. However, it
respectfully appears to us that all or almost all of these opinions seem to have
done so either on the erroneous assumption that Miller resolved that
issue or without sufficient articulated examination of the history and text of
the Second Amendment. {snip} 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. In fact, the text of the Constitution,
as a whole, strongly suggests that the words "the people" have
precisely the same meaning within the Second Amendment as without. And, as used
throughout the Constitution, "the people" have "rights" and
"powers," but federal and state governments only have
"powers" or "authority", never "rights." {snip} Several other Supreme Court opinions speak of
the Second Amendment in a manner plainly indicating that the right which it
secures to "the people" is an individual or personal, not a collective
or quasi-collective, right in the same sense that the rights secured to
"the people" in the First and Fourth Amendments, and the rights
secured by the other provisions of the first eight amendments, are individual or
personal, and not collective or quasi-collective, rights. See, e.g., Planned
Parenthood v. Casey, 112 S.Ct. 2791, 2805 (1992); Moore v. City of East
Cleveland, 97 S.Ct. 1932, 1937 (1977);(26) Robertson
v. Baldwin, supra (see quotation in note 17 supra); Scott
v. Sandford, 60 U.S. (19 How) 393, 417, 450-51, 15 L.Ed. 691, 705, 719
(1856). See also Justice Black's concurring opinion in Duncan v.
Louisiana, 88 S.Ct. 1444, 1456 (1968).(27) It appears clear that "the people,"
as used in the Constitution, including the Second Amendment, refers to
individual Americans. {snip} The plain meaning of the right of the people to
keep arms is that it is an individual, rather than a collective, right and is
not limited to keeping arms while engaged in active military service or as a
member of a select militia such as the National Guard. {snip} Taken as a whole, the text of the Second
Amendment's substantive guarantee is not suggestive of a collective rights or
sophisticated collective rights interpretation, and the implausibility of either
such interpretation is enhanced by consideration of the guarantee's placement
within the Bill of Rights and the wording of the other articles thereof and of
the original Constitution as a whole. {snip} In sum, to give the Second Amendment's preamble
[A well regulated militia...] its full and proper due there is no need to
torture the meaning of its substantive guarantee into the collective rights or
sophisticated collective rights model which is so plainly inconsistent with the
substantive guarantee's text, its placement within the bill of rights and the
wording of the other articles thereof and of the original constitution as a
whole. {snip} Turning to the history of the Second
Amendment's adoption, we find nothing inconsistent with the conclusion that as
ultimately proposed by Congress and ratified by the states it was understood and
intended in accordance with the individual rights model as set out above. {snip} 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. {snip} 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. |
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