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Thanks Josh!
How an Anti-Gun Spinmeister Helps
to Crystallize the Significance of Emerson

by Sean Oberle

October 22, 2001 -- I owe a word of gratitude to Joshua Horwitz, executive director of the Educational Fund to End Gun Violence. After considering his statement in that group’s October 17 press release about Emerson, the significance of the decision crystallized in my mind, and I’ve been quite happy and hopeful ever since.

Oh, that’s not what ol’ Josh intended, I’m sure. His intent clearly was to bolster his own troops and drive the reporting by the press, perhaps deflating our own celebrations while he was at it. Consider his statement:

“What was true before this decision is still true – no gun control law has ever been found unconstitutional by a federal court. This decision by the Fifth Circuit Court is another legal defeat in a long series of legal defeats for the gun lobby. Every time they try to overturn gun control laws on Second Amendment grounds, they lose. This decision will not impact the constitutionality of gun control laws already on the books nor will it affect proposed pieces of legislation...”  (See

Leave aside questions of whether his opener is accurate (the Gun Free School Zone Act, for instance, was found unconstitutional in federal court, albeit not on Second Amendment grounds). 

Rather, consider the following. He is correct. The ruling does not overturn any law. He is further correct that our side has suffered decades of legal defeats…that we have never overturned a law on Second Amendment grounds – even to this day.

So how can this make me happy and hopeful?

We have suffered those defeats because of the prevailing legal model and judicial attitude about gun control – one that has existed at least since the distortion of the Miller decision began in the early 1940s. That model has been to demand, “People, you must prove to the government that this gun control law is unconstitutional” rather than to demand, “Government, you must prove to the people that this gun control law is constitutional.” 

We’ve lived in upside down land for 60 years, and while not pivoting us totally right side up, Emerson is the weight that hopefully will set that change in motion.

Emerson hopefully will do this because – unlike the distortion of Miller that established a standard that citizens need to meet (reasonable relationship to the preservation of a militia) – Emerson sets a standard that the government needs to meet. That standard is:

“…limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.”

Did the government meet that standard. Well, the 5th Circuit says it did, and I know some people dispute that finding. But I’m not writing about that debate. Rather I’m noting that the implication by Horwitz that this decision changes nothing from a legal standpoint is, well, to put it as nicely as I can, one of the following: deceitful, delusional or ignorant.

Had the old distortion of Miller prevailed in the 5th Circuit, the question of whether the government’s law met any kind of “limited, narrowly tailored specific” standard would not have been an issue. Rather, the judges simply would have asked the same robotic question: “Did Dr. Emerson demonstrate that his possession of firearms has some reasonable relationship to the preservation of a militia.”

As this truth invades the minds of the grabber lobbyists, expect to hear a mantra that already has begun – indeed it began with Judge Parker’s dissent. They will attempt to ward off the truth, chanting “The Second Amendment discussion is just dicta. It is not legally binding…just dicta…not legally binding…just dicta…not legally binding…join us…join us…join us…oh, the bliss…just dicta…just dicta…ahhhh!”

Well, repeating a claim – whether as mantra or propaganda – doesn’t make it true. I haven’t seen anything to convince me that the discussion is “just dicta” – including from Judge Parker’s dissent. 

Now, I’m not a lawyer, but I usually can grasp legal concepts. My understanding of dicta is that it is opinion written in a decision, but not essential to the outcome. Let’s see, the judges decided that the Second Amendment was not violated. To make that decision, they had to define the meaning of the Second Amendment and compare the law in question to that definition. The definition seems to be of primary importance to me.

That’s why Judge Parker’s claim just doesn’t ring true to me. In short, he claimed that the discussion of individual vs. collective is irrelevant because the court holds that the right is subject to “reasonable restrictions.” In other words, his position is that the nature or the right is irrelevant to whether a restriction is reasonable. That’s just plain silly to this non-lawyer. A law that disarmed everyone who was not an on-duty member of an organized state militia would be perfectly reasonable under the collective right of the states model. Obviously, such a law not only would be unreasonable under the individual rights model, it would be egregiously unreasonable.

Thus, I really need to hear some clarification about Judge Parker’s assertion. I really need it explained to me how the mere acceptance of the possibility for “reasonable restrictions” of a right renders the nature of the right moot. But I know I won’t hear anything soon, probably not until the gun control side is forced to address the question when they try to get the Emerson finding deemed to be dicta by a judge in a future case.

Rather, all that will be known is that Judge Parker wrote “dicta,” and we’ll hear that opinion repeated over and over from the grabbers. 

But we need to repeat the truth as often as they repeat their illusion. We must explain why it is not dicta. We must get it through to America that the standard is changing.

In fact, while we’re at it, we need to repeat what the new standard should be and hopefully will become: 

“We shouldn’t have to show need to keep our guns. You should have to show need to take them away.” 

For more on that concept, read my article We Don’t Have to Show Need at

Sean Oberle is a Featured Writer and gun control analyst for He can be reached at View other articles from him at

Related Reading on U.S. v Emerson:

Exposing Lies & Distortions from the Gun Prohibitionists

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War is just one more big government program. — JOSEPH SOBRAN

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