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
Biden Administration Finalizes “New” Firearm Storage Rule

News  

Tuesday, January 18, 2022

Biden Administration Finalizes “New” Firearm Storage Rule

On January 3, the Biden Administration’s Department of Justice (DOJ) announced that it would be finalizing a new rule on firearm storage for Federal Firearm Licensees (FFLs). The DOJ additionally announced an update to the Bureau of Alcohol, Tobacco, ...

Washington: Another Year – Another Extreme Gun Ban!

Friday, January 14, 2022

Washington: Another Year – Another Extreme Gun Ban!

The legislature only just gaveled in this week and anti-gun legislators and gun control groups couldn’t wait to reintroduce their extreme gun ban legislation - an "assault weapons" ban, Senate Bill 5217.

Washington:  The Hits Keep on Coming as Magazine Ban Pulled to the Senate Floor

Friday, January 14, 2022

Washington: The Hits Keep on Coming as Magazine Ban Pulled to the Senate Floor

On Friday, the Washington Senate pulled magazine ban legislation, Senate Bill 5078 to the Senate Floor where it is eligible for a vote for passage.

Growing the Gun Community in Unlikely Places

News  

Tuesday, January 18, 2022

Growing the Gun Community in Unlikely Places

We mentioned a Beverly Hills gun shop last week in an article about the continued increase in background checks and gun sales. We spoke with the proprietor of that shop, and he offered a very humanized ...

Chicago Politicians, Whistling Past the Graveyard

News  

Tuesday, January 18, 2022

Chicago Politicians, Whistling Past the Graveyard

It’s no secret that crime in Chicago has reached levels not seen in decades. Crime statistics released by the Chicago Police Department (CPD) for October 2021 show significant increases in incidents of serious crime compared to the ...

Anti-gunners Ignore the Obvious, Lamely Try to Blame Gun Sales for Rise in Homicide Rates

News  

Tuesday, January 18, 2022

Anti-gunners Ignore the Obvious, Lamely Try to Blame Gun Sales for Rise in Homicide Rates

Last week, two gun control advocates – who described themselves as a “crime analyst” and a “data scientist” -- published an article in the anti-gun publication The Atlantic blaming the 2020 spike in homicide rates on that ...

Alabama: Sheriff’s Association Working With Anti-Gun Group Opposing Constitutional Carry

Monday, January 17, 2022

Alabama: Sheriff’s Association Working With Anti-Gun Group Opposing Constitutional Carry

Bobby Timmons, director of the Alabama Sheriff’s Association (ASA), is so opposed to acknowledging your inherent right-to-carry, and wants so badly to protect the revenue stream from permit fees, that he openly opposes the Second ...

What You Need to Know about ATF’s New eForms System

News  

Monday, January 10, 2022

What You Need to Know about ATF’s New eForms System

On December 23, ATF launched a new system for applicants to complete various forms that ATF is responsible for administrating. For most gun owners, this change will primarily impact how applications for firearms regulated under ...

Indiana: House Passes Lawful Carry, Sends To Senate

Wednesday, January 12, 2022

Indiana: House Passes Lawful Carry, Sends To Senate

Yesterday, the House voted 64-29 to pass House Bill 1077, the lawful carry bill. It will now go to the Senate for further consideration.

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

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.