Explore The NRA Universe Of Websites

APPEARS IN Second Amendment

Anti-gun Lobby Attempt To Influence U.S. Brief In Supreme Court On Emerson Second Amendment Case<BR> By Stephen P. Halbrook

Tuesday, May 14, 2002

           On May 6, 2002, U.S. Solicitor General Theodore Olson filed a brief in the Supreme Court recognizing that the Second Amendment right to keep and bear arms is a personal right of law-abiding citizens.  The filing arose out of the decision in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), in which the U.S. Court of Appeals for the 5th Circuit held that the Second Amendment protects the right to possess a firearm, but upheld a law barring possession by a person subject to a domestic violence restraining order.

            When the case was before the 5th Circuit, the Reno Justice Department argued the Clinton Administration position that the only “right” protected by the Second Amendment was that of the States to maintain militias, not of any individual to possess a firearm.  After the 5th Circuit rejected that view in favor of the individual-rights interpretation but upheld the statute, Dr. Timothy Emerson filed a petition asking the Supreme Court to review that decision and to declare the law void.

            Given that Attorney General John Ashcroft on previous occasions expressed agreement with the individual-rights view, it was an open question as to how the United States would respond to Emerson’s petition.  Moreover, another petition was pending before the Court asserting the invalidity of a law based on the Second Amendment. [1]   The due date for the government’s response approached.

            The Violence Policy Center (VPC), which lobbies for prohibitions on possession of firearms, anticipated that the brief of the United States in Emerson would agree with the 5th Circuit that the Second Amendment guarantees individual rights.  In an effort to prevent such a brief from being filed, VPC retained Andrew Frey, who was Deputy Solicitor General during 1973-86, to write a letter to Solicitor General Olson urging that the United States stick with its Clinton-era position that the Second Amendment does not protect any individual rights.

            Frey wrote a lengthy missive on behalf of VPC to Olson dated May 2, 2002, just four days before the brief was due.  The letter was quickly posted on the VPC website, which features a regular “Ashcroft Watch” column which is critical of the Attorney General.  The following analyzes Mr. Frey’s letter.

            Frey asserts that any concession that “the right of the people to keep and bear arms” means what it says would “appear to be a politically motivated action and would impair the credibility of your Office before the Court and in the eyes of the public.”  It goes without saying that the Clinton Administration’s anti-Second Amendment policies were nothing but political and that an honest appraisal of this portion of the Bill of Rights would restore, not reduce, credibility.  Frey described the VPC as “a national non-profit educational organization” concerned with “firearms violence,” but in reality it is a tiny extremist group which lobbies to criminalize firearm possession by law-abiding Americans and is completely unconcerned with violent criminals.

            Frey’s 15-page letter proceeds to make one misstatement after another to denigrate the Second Amendment.  Not once does he so much as quote its words: “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.”  Frey attacks the decision by the U.S. Court of Appeals for the Fifth Circuit in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), but does not, and indeed cannot, refute that court’s textual analysis:

[T]he words “the people” have precisely the same meaning within the Second Amendment as without. And, as used throughout the Constitution, “the people” have “rights” and “powers,” but federal and state governments only have “powers” or “authority”, never “rights.” 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.”

Id. at 227-28 (citing constitutional provisions).

            Emerson upheld the law in question, 18 U.S.C. § 922(g)(8), which prohibits firearm possession by a person subject to a domestic violence restraining order.  The defendant in that case had notice and an opportunity to be heard, and Texas law requires that such restraining orders be entered only if the judge determines factually that the person is a danger.  (The district court in Emerson had interpreted the order to have been a routine, boiler plate order entered without factual findings.)

            Frey argues that Emerson’s holding that the Second Amendment protects individual rights was “inconsistent with a long line of decisions of the Supreme Court . . . .”  To the contrary, Emerson is consistent with every Supreme Court decision which so much as mentions the Second Amendment.  Frey lectured Olson that the government should not file a brief which, “like the Fifth Circuit, gratuitously explicates its interpretation of the Second Amendment.”

            If the Second Amendment is addressed, argued Frey, the government should contend that the amendment only protects arms-bearing in the militia.  This had been argued by the government in the 1939 Miller case involving whether Congress could tax and register machineguns and short-barreled shotguns.  Indeed, that brief argued that the right extended only to “the people collectively” and only “as members of the state militia.” [2]

            However, the Supreme Court in United States v. Miller, 307 U.S. 174 (1939), did not even address that argument and held instead that the Second Amendment test was whether “this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”  307 U.S. at 178. The Court never suggested that the possessor had to be in the militia.  Moreover, the Court noted that historically “the Militia comprised all males physically capable of acting in concert for the common defense” and that “these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”  Id. at 179.

            The government brief in Miller did not represent the position of the United States.  That position was made clear two years later in the Property Requisition Act, which gave the President the power to requisition property for wartime use.  It declared that nothing in the act shall be construed:

(1)  to authorize the requisitioning or require the registration of any firearms possessed by any individual for his personal protection or sport (and the possession of which is not prohibited or the registration of which is not required by existing law),

(2)  to impair or infringe in any manner the right of any individual to keep and bear arms,

P.L. 274, Ch. 445, 55 Stat., pt. 1, 742 (1941).  This was a law duly passed by Congress and signed by President Franklin D. Roosevelt.  Obviously, the United States considered the Second Amendment to protect individual rights.

            Similarly, the position of the United Stat

TRENDING NOW
U.S. Politicians Cheer New Zealand Gun Confiscation

News  

Friday, March 22, 2019

U.S. Politicians Cheer New Zealand Gun Confiscation

American gun owners have once again been reminded that the ultimate goal of U.S. gun control advocates is firearms bans and confiscation. Since the heinous terrorist attack in Christchurch, New Zealand, American anti-gun politicians, activists, ...

Iowa: House Passes Bill to Improve Hunting Opportunities

Hunting  

Friday, March 22, 2019

Iowa: House Passes Bill to Improve Hunting Opportunities

On March 20th, the Iowa state House of Representatives voted 57-40 to pass House File 716 to improve hunting opportunities in Iowa by expanding the types of cartridges that may be used for hunting.  HF 716 will ...

Governor Bevin Signs NRA-backed Constitutional Carry

News  

Monday, March 11, 2019

Governor Bevin Signs NRA-backed Constitutional Carry

The NRA applauds Kentucky Governor Matt Bevin for signing Senate Bill 150 into law, an NRA-backed bill that fully recognizes the constitutional right of law-abiding gun owners to carry a concealed firearm.

NRA Praises Vermont Superior Court Decision on&#160;Magazine&#160;Bans

News  

Thursday, March 21, 2019

NRA Praises Vermont Superior Court Decision on Magazine Bans

NRA applauds the Vermont Superior Court for allowing a lawsuit challenging the State's ban on standard capacity magazines to proceed. 

Activist Court Turns the Law Designed to Protect the Firearm Industry from Frivolous Lawsuits on its Head

News  

Friday, March 15, 2019

Activist Court Turns the Law Designed to Protect the Firearm Industry from Frivolous Lawsuits on its Head

On Thursday, the Connecticut Supreme Court created a dangerous new exception to the Protection of Lawful Commerce in Arms Act (PLCAA), a strong safeguard for our right to keep and bear arms.  

Illinois Court Throws Out Deerfield Gun Ban

News  

Friday, March 22, 2019

Illinois Court Throws Out Deerfield Gun Ban

NRA applauds Illinois court ruling throwing out Village of Deerfield's ban on commonly owned firearms and magazines.

Alaska State Commission for Human Rights Director Attacks Human’s Rights

News  

Friday, March 22, 2019

Alaska State Commission for Human Rights Director Attacks Human’s Rights

The Last Frontier is also one of the last places one expects to find rights-trampling government officials. The state’s strong libertarian streak is one of the reasons a recent report regarding the authoritarian behavior of an official ...

Pro-Gun Senators Introduce Bill to Prohibit Discrimination in Financial Services

News  

Friday, March 22, 2019

Pro-Gun Senators Introduce Bill to Prohibit Discrimination in Financial Services

On March 14, pro-gun Sens. Kevin Cramer (R-ND) and John Kennedy (R-LA) introduced S. 821 the Freedom Financing Act, a bill to prohibit discrimination against the firearms industry in the provision of financial services.

Legacy Media Push New Zealand Gun Confiscation Using Lies about Australian Ban

News  

Friday, March 22, 2019

Legacy Media Push New Zealand Gun Confiscation Using Lies about Australian Ban

The ongoing cheerleading effort by the international press in furtherance of the New Zealand government’s gun confiscation plans is enough to make any journalist with even a shred of objectivity blush. Worse, some outlets have ...

Utah: Self-Defense Bill Heads to the Governor’s Desk as Multiple Gun Control Bills Fail at the End of Session

Thursday, March 21, 2019

Utah: Self-Defense Bill Heads to the Governor’s Desk as Multiple Gun Control Bills Fail at the End of Session

The Utah Legislature has adjourned from its 2019 Legislative session.

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.