United States v. Emerson
Encyclopedia
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 , 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."
However, subsequently, 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.
Federal Reporter
The Federal Reporter is a case law reporter in the United States that is published by West Publishing. It begins with cases decided in 1880. It was preceded by Federal Cases...
203 (5th Cir. 2001), is a decision by the United States Court of Appeals for the Fifth Circuit
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
holding that the Second Amendment
Second Amendment to the United States Constitution
The Second Amendment to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.In 2008 and 2010, the Supreme Court issued two Second...
to the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
guarantees individuals the right to bear arms. The case involved a challenge to the Constitutionality of , 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
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
of the Fifth Circuit's decision, 122 S. Ct. 2362 (2002).
In 2002, the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
disagreed with Emerson in Silveira v. Lockyer
Silveira v. Lockyer
Silveira v. Lockyer, 312 F.3d 1052 , is a decision by the United States Court of Appeals for the Ninth Circuit holding that the Second Amendment to the United States Constitution does not guarantee individuals the right to bear arms...
, 312 F.3d 1052 (9th Cir. 2002). In 2008, the D.C. Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
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
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in District of Columbia v. Heller
District of Columbia v. Heller
District of Columbia v. Heller, 554 U.S. 570 , was a landmark case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for traditionally lawful purposes in federal enclaves, such as...
, 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."
However, subsequently, 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.