Explore The NRA Universe Of Websites

APPEARS IN Legal & Legislation

NRA`s Friend Of The Court Brief In U.S. V. Emerson

Tuesday, February 15, 2000

__________________

No. 99-10331
__________________

IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________

UNITED STATES OF AMERICA
Plaintiff-Appellant

v.

TIMOTHY JOE EMERSON
Defendant-Appellee
__________________

On Appeal from the United States District Court for the
Northern District of Texas, San Angelo Division
__________________

BRIEF SUPPORTING APPELLEE OF AMICUS CURIAE
NATIONAL RIFLE ASSOCIATION OF AMERICA
__________________

Of Counsel:
Professor Nicholas J. Johnson
140 W. 62nd Street, Room 226
New York, N.Y. 10023
(212) 636-6983

Robert Dowlut
11250 Waples Mill Rd. 6N (NRA)
Fairfax, VA 22030-7400
(703) 267-1254
Fax (703) 267-3985
Counsel for Amicus Curiae



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, ) Appeal Numbers 99-10331

Plaintiff-Appellant


v.

) Appeal from U.S. District Court, Northern
) District of Texas
) San Angelo Division
) Criminal No. 6:98CR103C
) Honorable Sam R. Cummings

Defendant-Appellee
TIMOTHY JOE EMERSON,

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record for amicus curiae National Rifle Association of America (NRA) certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.

Plaintiff-Appellant-Cross Appellee:

United States of America

Represented by:

William Bryan Mateja
U. S. Attorney`s Office
1205 Texas Avenue, 7th Floor
Lubbock, Texas 79401

Defendant-Appellee-Cross Appellant:

Timothy Joe Emerson

Represented by:

Timothy Crooks
Federal Public Defender
600 Texas Street, Suite 100
Fort Worth, Texas 76102-4612

Amicus Curiae:
National Rifle Association of America is a New York not-for-profit corporation. It has not issued stock or debt securities to the public. It is recognized by the Internal Revenue Service as a 26 U.S.C. Sec. 501(c)(4) entity.

Represented by:

Robert Dowlut
11250 Waples Mill Rd., 6N (NRA)
Fairfax, Virginia 22030-7400
Attorney for Amicus Curiae

Respectfully submitted,

________________________________
Robert Dowlut
Attorney for Amicus Curiae NRA

TABLE OF CONTENTS

Certificate of Interested Persons

Table of Authorities

Statement of Interest and Identity of Amicus Curiae National Rifle Association of America

Summary of Argument

Argument

I. The Second Amendment protects the fundamental, individual right to keep and bear arms

A. The text and history of the Second Amendment are consistent and unambiguous

B. The right to keep and bear arms continues to serve its constitutional purpose in contemporary America

II. Supreme Court precedent does not support the constitutionality of the government`s attempted application of section 922(g)(8)

A. The Miller decision

B. Miller accepted the individual right interpretation of the Second Amendment

C. Miller`s holding applies only to weapons peculiarly adapted to criminal purposes

III. The Fifth Circuit precedents cited by the government do not address the issue in this case

IV. Precedent from other circuits provide no persuasive reason to accept the government`s attempted application of Sec. 922(g)(8)

A. The "states` right" theory should not be adopted by this Court

B. This Court should not adopt an interpretation of Miller that renders the Second Amendment a dead letter

Conclusion

Certificate of Service

Certificate of Compliance

TABLE OF AUTHORITIES

Cases

Aymette v. State, 21 Tenn. (2 Hum.) 154 (1840)
Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943)

DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989)

Duncan v. Louisiana, 391 U.S. 145 (1968)
Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999)
Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), cert. denied, 519 U.S. 912 (1996)
Lewis v. United States, 445 U.S. 55 (1980)
Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995), cert. denied, 516 U.S. 813 (1995)
Presser v. Illinois, 116 U.S. 252 (1886)
Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983)

Saenz v. Heldenfels Brothers, Inc., 183 F.3d 389 (5th Cir. 1999)
United States v. Bass, 404 U.S. 336 (1971)
United States v. Cruikshank, 92 U.S. 542 (1875)

v

United States v. Friel, 1 F.3d 1231 (1st Cir. 1993)
United States v. Hale, 978 F.2d 1016 (8th Cir. 1992) cert. denied, 507 U.S. 997 (1993)
United States v. Johnson
, 497 F.2d 548 (4th Cir. 1974)
United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971)
United States v. Miller, 307 U.S. 174 (1939)
United States v. Oakes, 564 F.2d 384 (10th Cir. 1977) cert. denied, 435 U.S. 926 (1978)

United States v. Rybar, 103 F.3d 273 (3d Cir. 1996) cert. denied, 118 S. Ct. 46 (1997)
United States v. Stevens, 440 F.2d 144 (6th Cir. 1971)
United States v. Toner, 728 F.2d 115 (2d Cir. 1984)
United States v. Tot, 131 F.2d 261 (3rd Cir. 1942), rev`d on other grounds, 319 U.S. 463 (1943)

United States v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied 426 U.S. 948 (1976)

United States v. Williams, 446 F.2d 486 (5th Cir. 1971)
United States v. Wright, 117 F.3d 1265 (11th Cir. 1997), cert. denied, 118 S. Ct. 584 (1997)

Constitutional and Statutory Provisions

10 U.S.C. Sec. 311

18 U.S.C. Sec. 922(g)(8)

Act of May 8, 1792, ch. 33, 1 Stat. 271

Articles of Confederation art. VI, para. 4

U.S. Const. art. I, Sec. 8, cl. 16

Other Authorities

William Blackstone, Commentaries (St. George Tucker ed. 1803)

Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America (2d ed. 1891)

3 J. Elliot, Debates in the Several State Conventions 45 (2d ed. 1836)

3 J. Elliot, Debates in the Several State Conventions 425 (3d ed. 1937)

Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Georgetown L.J. 309 (1991)

2 Max Farrand, The Records of the Federal Convention (1911)

The Federalist (C. Rossiter ed., 1961)

Don B. Kates, The Second Amendment and the Ideology of Self-Protection, 9 Const. Commentary 87 (1992)

Gary Kleck, Targeting Guns: Firearms and their Control (Aldine de Gruyter 1997)

Gary Kleck & Marc Gertz, Ar

TRENDING NOW
Trump Administration Continues to Deliver for Gun Owners with Recent Initiatives

News  

Monday, April 6, 2026

Trump Administration Continues to Deliver for Gun Owners with Recent Initiatives

Amid a steady stream of headlines highlighting anti-gun legislative proposals in the states, ongoing litigation battles, and regulatory uncertainty, there is also good news to report on the Second Amendment front, courtesy of the Trump ...

Anti-gun Chicago Mayor Spends Astronomical Amounts of Tax Dollars on Armed Security

News  

Monday, April 6, 2026

Anti-gun Chicago Mayor Spends Astronomical Amounts of Tax Dollars on Armed Security

Chicago Mayor Brandon Johnson, who was dragged for spending over $30,000 of his campaign funds on hair and makeup in a year, is now facing scrutiny over the optics and price tag of his personal security force.

Trump Administration Addresses Defensive Carry for Active-Duty Military Members

News  

Monday, April 6, 2026

Trump Administration Addresses Defensive Carry for Active-Duty Military Members

Just as we were finalizing another article this week on pro-gun initiatives by the Trump Administration, yet another example was announced. 

Rhode Island:  Gun Bans On Tap In Providence Next Week

Friday, April 3, 2026

Rhode Island: Gun Bans On Tap In Providence Next Week

On Wednesday April 8, the House Judiciary Committee will meet in the House Lounge at 4 p.m. to launch an historic attack on our Second Amendment rights. 

Social “Science” Replication Crisis Shows Danger Field Poses to Public Policy

News  

Monday, April 6, 2026

Social “Science” Replication Crisis Shows Danger Field Poses to Public Policy

Gun rights supporters know that civilian disarmament advocates have long employed dubious social “science”/public “health” research in their mission to strip Americans of their Second Amendment rights.

NRA Files Amicus Brief Urging SCOTUS to Hear Challenge to NFA Restrictions on Suppressors

Thursday, April 2, 2026

NRA Files Amicus Brief Urging SCOTUS to Hear Challenge to NFA Restrictions on Suppressors

The National Rifle Association joined the Second Amendment Foundation, American Suppressor Association, California Rifle & Pistol Association, Second Amendment Law Center, Minnesota Gun Owners Caucus, and the Citizens Committee for the Right to Keep and ...

Kentucky: Governor Beshear Vetoes Pro-Gun Bills - Urge Your Legislators to Override!

Friday, April 3, 2026

Kentucky: Governor Beshear Vetoes Pro-Gun Bills - Urge Your Legislators to Override!

On Thursday, April 2nd, Governor Andy Beshear vetoed two pro-gun bills, House Bill 78 and House Bill 312.

Ammunition Serialization: The Five-Cent Fiasco in Illinois

News  

Monday, March 30, 2026

Ammunition Serialization: The Five-Cent Fiasco in Illinois

Democrat officials in Illinois have long taken unabashed pride in the abridgement of Second Amendment rights, and their latest attempt at “bullet control” is again making headlines.

Virginia: Legislature Adjourns from 2026 Session; Anti-Gun Bills on Governor's Desk

Sunday, March 15, 2026

Virginia: Legislature Adjourns from 2026 Session; Anti-Gun Bills on Governor's Desk

On Saturday, March 14th, the Virginia General Assembly adjourned sine die from the 2026 legislative session, and the future of the Commonwealth hangs in the balance. 

West Virginia: Governor Morrisey Signs Constitutional Carry Expansion Bill

Thursday, April 2, 2026

West Virginia: Governor Morrisey Signs Constitutional Carry Expansion Bill

On Wednesday, April 1st, Governor Patrick Morrisey signed House Bill 4106, expanding constitutional carry provisions to 18-20 year olds.

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.