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The contemporary political and constitutional debate over gun rights and regulations has its roots in the 1960s. The end of the decade in particular—marked by high-profile political assassinations and a dramatic increase in crime—generated new state and federal gun regulations as well as pushback against those laws. The 1970s saw both the creation of Handgun Control Inc. (later the Brady Campaign to Prevent Gun Violence) and the transformation of the National Rifle Association from a marksmanship organization to a rights-oriented advocacy group. Debates over gun regulations became geographically and culturally polarized and then politically polarized, with the Republican party, in particular, adopting support for a robust Second Amendment as part of their national platform. Democrats, though championing gun control laws in the 1990s, backed off support for stringent national gun regulations following their close defeat in the 2000 election. The skew of the Electoral College and the Senate towards rural areas made gun regulation a less appealing political stance for the national party.

Gun regulation and gun rights became increasingly salient in the legal realm as well, as scholars parsed the text of the Amendment’s two clauses, their relationship to one another, legislative debates over the Second Amendment during the First Congress, and other sources of evidence. While different scholars or lawyers categorized these arguments in different ways, two basic models of interpreting the Amendment emerged.

The first camp contained advocates of the collective rights or federalism model. Under this view, the Second Amendment was a guarantee to the states that Congress could not disarm its citizen militias. The second camp advocated an individual rights model, under which the Amendment (again with the purpose of protecting militias from national interference) had created an individual right to firearms.

The difference between the policy outcomes the two models produced was considerable. Under the collective rights standard, the Second Amendment did not grant individuals legal standing to challenge state or federal gun laws, instead only limiting federal interference with state law. Under the individual rights model, by contrast, individuals had a liberty interest in owning firearms that could serve as the basis for challenging gun regulations in federal court. Moreover, an individual rights model implied the incorporation of the Second Amendment against the states, meaning the right could limit state as well as federal gun regulation.

Both models had considerable political and legal support. At the start of the 21^st century, two circuit panels authored contrasting interpretations of the Second Amendment, with a Fifth Circuit panel arguing on behalf of the individual rights model, and a Ninth Circuit panel adopting the collective rights framework. As you read excerpts from each opinion below, pay particular attention to how each panel differently interprets the same text and historical analysis. What points or pieces of evidence do you find particularly convincing for each side’s argument?

Chronologically, the first case was United States v. Emerson (2001), the Fifth Circuit case which adopted the individual rights model of the Second Amendment. Emerson addressed an interaction between state and federal law. Emerson’s wife filed for divorce as well as some protective orders against her husband for making threats against her. Federal law banned individuals under such orders from possessing firearms; Emerson violated the law by purchasing a gun after the restraining order was issued.

Emerson moved to dismiss the charges, arguing the federal law in question violated his Second Amendment rights because there had been no individualized determination that his rights should be revoked. The Fifth Circuit (whose opinion was supported by the Bush administration) found that the Second Amendment did guarantee an individual right to own firearms, but held that the restraining order was justified, making the application of federal law appropriate.

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United States v. Emerson

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270 F.3d 203 (5th Cir. 2001)

Facts: Emerson’s wife filed for divorce in Texas, afterward filing for and receiving protective orders relating to potential threats made by Emerson. While subject to these restraining orders, Emerson purchased a firearm, in violation of a federal law that banned such possession while under a restraining order whose terms prohibit the use of force against a child or partner. After being charged, Emerson moved to dismiss the indictment, arguing the federal law violated his Second Amendment rights because there had not been findings sufficient to justify the violation of his right to bear arms. The trial court judge granted the motion to dismiss, and the United States appealed.

Question: Does the Second Amendment create an individual right to bear firearms? Were Emerson’s rights violated here?

Vote: Yes; No (3-0)

For the Panel: Judge Garwood

Special concurring opinion: Judge Parker

GARWOOD, Circuit Judge

… On August 28, 1998, Sacha Emerson, Emerson’s wife, filed a petition for divorce in the 119th District Court of Tom Green County, Texas. The petition also requested, inter alia, a temporary injunction enjoining Emerson from engaging in any of twenty-nine enumerated acts…

On September 14, 1998, Judge Sutton issued a temporary order that included a “Temporary Injunction” which stated that Emerson “is enjoined from” engaging in any of twenty-two enumerated acts, including the following:

2. Threatening Petitioner in person, by telephone, or in writing to take unlawful action against any person.

4. Intentionally, knowingly, or recklessly causing bodily injury to Petitioner or to a child of either party.

5. Threatening Petitioner or a child of either party with imminent bodily injury.

The order provides that it “shall continue in force until the signing of the final decree of divorce or until further order of this court.” The September 14, 1998 order did not include any express finding that Emerson posed a future danger to Sacha or to his daughter Logan. There is nothing to indicate that Emerson ever sought to modify or challenge any of the provisions of the September 14, 1998 order.

On December 8, 1998, the grand jury for the Northern District of Texas, San Angelo division, returned a five-count indictment against Emerson… Count 1, the only remaining count and the count here at issue, alleged that Emerson on November 16, 1998, unlawfully possessed “in and affecting interstate commerce” a firearm, a Beretta pistol, while subject to the above mentioned September 14, 1998 order, in violation of 18 U.S.C. § 922(g) (8) …

Emerson moved pretrial to dismiss the indictment, asserting that section 922(g) (8), facially and as applied to him, violates the Second Amendment and the Due Process Clause of the Fifth Amendment…

The district court granted Emerson’s motions to dismiss… The district court held that dismissal of the indictment was proper on Second or Fifth Amendment grounds…

The government appealed…

The Second Amendment provides:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

… The district court held that the Second Amendment recognizes the right of individual citizens to own and possess firearms, and declared that section 922(g) (8) was unconstitutional on its face because it requires that a citizen be disarmed merely because of being subject to a “boilerplate [domestic relations injunctive] order with no particularized findings.”…

The government steadfastly maintains that the Supreme Court’s decision in United States v. Miller (1939), mandated acceptance of the collective rights … model, and rejection of the individual rights… model, as a basis for construction of the Second Amendment. We disagree…

Miller expresses its holding as follows:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Nowhere in the Court’s Miller opinion is there any reference to the fact that [n]either of the two defendants was ever a member of any organized, active militia, such as the National Guard, much less that [n]either was engaged (or about to be engaged) in any actual military service or training of such a militia unit when transporting the sawed-off shotgun from Oklahoma into Arkansas. Had the lack of such membership or engagement been a ground of the decision in Miller, the Court’s opinion would obviously have made mention of it. But it did not…

Just after the above quoted portion of its opinion, the Miller court continued: “With obvious purpose to assure the continuation and render possible the effectiveness of such forces [militia] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” …

These passages from Miller suggest that the militia, the assurance of whose continuation and the rendering possible of whose effectiveness Miller says were purposes of the Second Amendment, referred to the generality of the civilian male inhabitants throughout their lives from teenage years until old age and to their personally keeping their own arms, and not merely to individuals during the time (if any) they might be actively engaged in actual military service or only to those who were members of special or select units.

We conclude that Miller does not support the government’s collective rights or sophisticated collective rights approach to the Second Amendment…

We begin construing the Second Amendment by examining its text…

a. “People”

The states rights model requires the word “people” to be read as though it were “States” or “States respectively.” This would also require a corresponding change in the balance of the text to something like “to provide for the militia to keep and bear arms.” That is not only far removed from the actual wording of the Second Amendment, but also would be in substantial tension with Art. 1, § 8, Cl. 16 (Congress has the power “To provide for … arming … the militia…”). For the sophisticated collective rights model to be viable, the word “people” must be read as the words “members of a select militia.” The individual rights model, of course, does not require that any special or unique meaning be attributed to the word “people.” It gives the same meaning to the words “the people” as used in the Second Amendment phrase “the right of the people” as when used in the exact same phrase in the contemporaneously submitted and ratified First and Fourth Amendments.

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… Moreover, the Constitution’s text likewise recognizes not only the difference between the “militia” and “the people” but also between the “militia” which has not been “call [ed] forth” and “the militia, when in actual service.” …

It appears clear that “the people,” as used in the Constitution, including the Second Amendment, refers to individual Americans.

b. “Bear Arms”

Proponents of the states’ rights and sophisticated collective rights models argue that the phrase “bear arms” only applies to a member of the militia carrying weapons during actual militia service. Champions of the individual rights model opine that “bear arms” refers to any carrying of weapons, whether by a soldier or a civilian. There is no question that the phrase “bear arms” may be used to refer to the carrying of arms by a soldier or militiaman. The issue is whether “bear arms” was also commonly used to refer to the carrying of arms by a civilian…

… However, there are numerous instances of the phrase “bear arms” being used to describe a civilian’s carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the “people” [or “citizen” or “citizens”] “to bear arms in defense of themselves [or “himself”] and the state,” or equivalent words, thus indisputably reflecting that under common usage “bear arms” was in no sense restricted to bearing arms in military service…

… We conclude that the phrase “bear arms” refers generally to the carrying or wearing of arms… However, amici’s argument that “bear arms” was exclusively, or even usually, used to only refer to the carrying or wearing of arms by a soldier or militiaman must be rejected. The appearance of “bear Arms” in the Second Amendment accords fully with the plain meaning of the subject of the substantive guarantee, “the people,” and offers no support for the proposition that the Second Amendment applies only during periods of actual military service or only to those who are members of a select militia…

c. “Keep … Arms”

Neither the government nor amici argue that “keep … Arms” commands a military connotation. 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.

d. Substantive Guarantee as a Whole

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.

We turn now to the Second Amendment’s preamble: “A well-regulated Militia, being necessary to the security of a free State.” And, we ask ourselves whether this preamble suffices to mandate what would be an otherwise implausible collective rights or sophisticated collective rights interpretation of the amendment. We conclude that it does not…

As observed in Miller, “the Militia comprised all males physically capable of acting in concert for the common defense” and “that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves.” … Plainly, then, “a well-regulated Militia” refers not to a special or select subset or group taken out of the militia as a whole but rather to the condition of the militia as a whole, namely being well disciplined and trained. And, “Militia,” just like “well-regulated Militia,” likewise was understood to be composed of the people generally possessed of arms which they knew how to use, rather than to refer to some formal military group separate and distinct from the people at large…

Much the same thought was expressed more than one hundred years later in the following passage from Tribe, American Constitutional Law (3d ed. 2000):

Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist/republican/federalism one: Its central object is to arm “We the People” so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather, the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes … a right that directly limits action by Congress or by the Executive Branch …

In sum, to give the Second Amendment’s preamble 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.

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…

The Federalists favored a strong federal government. The Anti-Federalists were much more suspicious and fearful of a strong federal government and wanted numerous safeguards in place to protect the people and the states from being tyrannized and oppressed by the federal government…

The Constitution alarmed Anti-Federalists… the Constitution gave the federal government large powers over the militia…

The Anti-Federalists feared that the federal government would act or fail to act so as to destroy the militia, e.g. failure to arm the militia, disarmament of the militia, failure to prescribe training for the militia, creation of a select militia or making militia service so unpleasant that the people would demand a standing army or select militia. These concerns over the militia were exacerbated by the third issue: the federal government’s power to maintain a standing army (art. I, § 8, cl.12). The Anti-Federalists feared that the federal government’s standing army could be used to tyrannize and oppress the American people…

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… 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…

Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any 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. Indeed, Emerson does not contend, and the district court did not hold, otherwise. As we have previously noted, it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms. … In essence, Emerson, and the district court, concede that had the order contained an express finding, on the basis of adequate evidence, that Emerson actually posed a credible threat to the physical safety of his wife…

Though we are concerned with the lack of express findings in the order… we are ultimately unpersuaded by Emerson’s argument. Congress legislated against the background of the almost universal rule of American law that for a temporary injunction to issue:

There must be a likelihood that irreparable harm will occur. Speculative injury is not sufficient; there must be more than an unfounded fear on the part of the applicant. Thus, a preliminary injunction will not be issued simply to prevent the possibility of some remote future injury…

In any event, it is clear to us that Texas law meets these general minimum standards…

For the reasons stated, we reverse the district court’s order granting the motion to dismiss the indictment under the Fifth Amendment…

ROBERT M. PARKER, Circuit Judge, specially concurring:

I concur in the opinion except for Section V. 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. The determination whether the rights bestowed by the Second Amendment are collective or individual is entirely unnecessary to resolve this case and has no bearing on the judgment we dictate by this opinion…

As federal judges it is our special charge to avoid constitutional questions when the outcome of the case does not turn on how we answer…

No doubt the special interests and academics on both sides of this debate will take great interest in the fact that at long last some court has determined (albeit in dicta) that the Second Amendment bestows an individual right. The real issue, however, is the fact that whatever the nature or parameters of the Second Amendment right, be it collective or individual, it is a right subject to reasonable regulation. The debate, therefore, over the nature of the right is misplaced. In the final analysis, whether the right to keep and bear arms is collective or individual is of no legal consequence. It is, as duly noted by the majority opinion, a right subject to reasonable regulation…

And whatever the scope of the claimed Second Amendment right, no responsible individual or organization would suggest that it would protect Emerson’s possession of the other guns found in his military-style arsenal the day the federal indictment was handed down. In addition to the Beretta nine millimeter pistol at issue here, Emerson had a second Beretta like the first, a semi-automatic M-1 carbine, an SKS assault rifle with bayonet, and a semi-automatic M-14 assault rifle. Nor would anyone suggest that Emerson’s claimed right to keep and bear arms supercedes that of his wife, their daughter, and of others to be free from bodily harm or threats of harm. Though I see no mention of it in the majority’s opinion, the evidence shows that Emerson pointed the Beretta at his wife and daughter when the two went to his office to retrieve an insurance payment. When his wife moved to retrieve her shoes, Emerson cocked the hammer and made ready to fire. Emerson’s instability and threatening conduct also manifested itself in comments to his office staff and the police. Emerson told an employee that he had an AK-47 and in the same breath that he planned to pay a visit to his wife’s boyfriend. 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.”

… By overreaching in the area of Second Amendment law, the majority stirs this controversy without necessity when prudence and respect for stare decisis calls for it to say nothing at all…