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
NDAA 2026: A Win for Surplus Firearms Collectors and the Second Amendment

News  

Monday, December 15, 2025

NDAA 2026: A Win for Surplus Firearms Collectors and the Second Amendment

It is indeed that time of year. Time for the 65th annual National Defense Authorization Act (NDAA). This critical federal legislation specifies the budget and policies for the United States Department of Defense for the next fiscal year. 

SCOTUS Denies Cert in NRA-ILA Challenge to NFA Short-Barreled Rifle Restrictions

Monday, December 15, 2025

SCOTUS Denies Cert in NRA-ILA Challenge to NFA Short-Barreled Rifle Restrictions

The U.S. Supreme Court denied certiorari in Rush v. United States, a challenge to the National Firearms Act of 1934’s restrictions on short-barreled rifles.

NRA Files Amicus Brief Urging SCOTUS to Hear Case of Virginia CCW Holder Arrested While Traveling Through Maryland

Thursday, December 11, 2025

NRA Files Amicus Brief Urging SCOTUS to Hear Case of Virginia CCW Holder Arrested While Traveling Through Maryland

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

Minnesota: Governor Walz Issues Two Gun Control Executive Orders

Tuesday, December 16, 2025

Minnesota: Governor Walz Issues Two Gun Control Executive Orders

With the holiday season upon us, former VP candidate Governor Tim Walz has once again proven his "Bah Humbug" stance on the Second Amendment. 

Buckle Up, Friends: DOJ Opens New 2A Division, Promises “A Lot More Action” to Safeguard Rights

News  

Monday, December 15, 2025

Buckle Up, Friends: DOJ Opens New 2A Division, Promises “A Lot More Action” to Safeguard Rights

In a landmark accomplishment in furtherance of President Donald J. Trump’s Executive Order on the Second Amendment, the U.S. Department of Justice (DOJ) has announced the creation of a new section under its Civil Rights Division - ...

North Carolina: Update on Permitless Carry

Tuesday, December 16, 2025

North Carolina: Update on Permitless Carry

In September, the North Carolina General Assembly briefly returned from recess and re-referred Senate Bill 50, Freedom to Carry NC, to the House Rules Committee.

George Soros’s Open Society Funded Foreign Agents’ Lawsuits Against U.S. Gun Industry

News  

Monday, December 15, 2025

George Soros’s Open Society Funded Foreign Agents’ Lawsuits Against U.S. Gun Industry

Earlier this month, the Washington Free Beacon ran a piece titled, “‘Assault on Our Sovereignty’: How George Soros Funds Foreign Government Lawsuits Against American Gun Makers.”

UK Continues Perilous Slide into 1984 Territory

News  

Monday, December 8, 2025

UK Continues Perilous Slide into 1984 Territory

By now, many of you have probably heard about the British subject (we are not really sure they should be called citizens anymore) who, after visiting the United States and enjoying the firearm freedoms many ...

Third Circuit Grants Rehearing En Banc in NRA-Supported Challenge to New Jersey’s Carry Restrictions

Thursday, December 11, 2025

Third Circuit Grants Rehearing En Banc in NRA-Supported Challenge to New Jersey’s Carry Restrictions

Today, the Third Circuit Court of Appeals granted rehearing en banc in Siegel v. Platkin, an NRA-supported challenge to New Jersey’s carry restrictions.

ATF Proposes Helpful Reforms for Travel with NFA Items

News  

Monday, December 8, 2025

ATF Proposes Helpful Reforms for Travel with NFA Items

Until the National Firearms Act is a relic of the past, every little bit that makes it easier to navigate can surely help. In recent weeks, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) ...

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.