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Key Excerpts from the D.C. Circuit Second Amendment Decision:

The whole decision is much worth reading, and, except for the standing issues, quite nontechnical. It's also hard to boil down, since the argument's components are closely integrated. Still, here is what seems to me to be the best very short excerpt:

In determining whether the Second Amendment's guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right — "the people." That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment — "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people" — indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between "the people," on the one hand, and "the states," on the other. The natural reading of "the right of the people" in the Second Amendment would accord with usage elsewhere in the Bill of Rights.

The District's argument, on the other hand, asks us to read "the people" to mean some subset of individuals such as "the organized militia" or "the people who are engaged in militia service," or perhaps not any individuals at all — e.g., "the states." These strained interpretations of "the people" simply cannot be squared with the uniform construction of our other Bill of Rights provisions....

The District points to the singular nature of the Second Amendment's preamble as an indication that the operative clause must be restricted or conditioned in some way by the prefatory language. However, the structure of the Second Amendment turns out to be not so unusual when we examine state constitutional provisions guaranteeing rights or restricting governmental power. It was quite common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it.

We think the Second Amendment was similarly structured. The prefatory language announcing the desirability of a well-regulated militia — even bearing in mind the breadth of the concept of a militia [which the court had earlier concluded "was a large segment of the population" rather than just a government-selected National Guard-like subgroup -EV] — is narrower than the guarantee of an individual right to keep and bear arms. The Amendment does not protect "the right of militiamen to keep and bear arms," but rather "the right of the people." The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias....

[I]f the competent drafters of the Second Amendment had meant the right to be limited to the protection of state militias, it is hard to imagine that they would have chosen the language they did. We therefore take it as an expression of the drafters' view that the people possessed a natural right to keep and bear arms, and that the preservation of the militia was the right's most salient political benefit — and thus the most appropriate to express in a political document.

PersonFromPorlock:
Interesting. How would the DOJ figure into an appeal? Its official position -- since the Ashcroft letter -- is apparently that the RKBA is an individual right, so would an appeal by the DC government have to be conducted without any DOJ participation?

I note that the Ashcroft letter didn't keep DOJ lawyers from appealing Emerson, and expect to be cynically unsurprised once again by the Bush administration.
3.9.2007 1:38pm
Bob Leibowitz (mail) (www):
Note that our very own Prof. Volokh is cited on page 35 of the opinion, "The Commonplace Second Amendment."
3.9.2007 1:39pm
JonC:
Person from Porlock, why do you think the DOJ would be involved in the appeal at all, irrespective of its position on the 2A? It's the government of the District of Columbia that would be appealing, not the federal government of the United States.
3.9.2007 1:46pm
JonC:

I note that the Ashcroft letter didn't keep DOJ lawyers from appealing Emerson, and expect to be cynically unsurprised once again by the Bush administration.


This is incorrect; the Solicitor General opposed cert in Emerson. The SG also later said that Emerson "reflects a sounder understanding of the scope and purpose of the Second Amendment" than the collective rights view.
3.9.2007 2:28pm
elChato (mail):
Gee, if only the Second Amendment would just get repealed, then we could argue gun-possession falls within a "penumbra" of other amendments and it would indisputably be regarded as an individual right.
3.9.2007 5:14pm
PersonFromPorlock:
JonC:

I really was asking a question. My assumption is that as the DC government is wholly a creature of the federal government, at some point it will be using federal resources to make its case. If I'm wrong, I'm wrong.

So far as who did and didn't oppose cert in Emerson, whatever the SG said, what the government did was try to get it overturned once cert was granted. Or was the appeal not conducted by a federal agency?
3.9.2007 5:59pm
JonC:

So far as who did and didn't oppose cert in Emerson, whatever the SG said, what the government did was try to get it overturned once cert was granted. Or was the appeal not conducted by a federal agency?


I think you are a bit confused about how the process of appealing decisions to the Supreme Court works-- no biggie, as it can be confusing unless it's a law dork. After a federal appeals court decides a case, the losing party can petition SCOTUS for a writ of cert.

Two points: 1.The party petitioning for cert (i.e. the party who wanted to appeal to SCOTUS) in Emerson was not the DOJ or any other federal agency. It was the defendant, Timothy Emerson. Why did he want to appeal? Because although the Fifth Circuit adopted the individual rights view of the 2A in his case, it nonetheless upheld his conviction, on grounds that it did not violate his 2A rights. He wanted to get his conviction reversed, so he applied for cert; the government, to preserve Emerson's conviction, opposed cert, but nonetheless took a favorable view of the Fifth Circuit decision.

2. SCOTUS never granted cert in Emerson. It let the Fifth Circuit decision stand. And in no subsequent case that I am aware has the Bush DOJ attempted to cast doubt on the validity of Emerson or have SCOTUS revisit the issue. In fact, just the opposite, as the two links I posted earlier demonstrate.
3.9.2007 6:35pm
JonC:
A typo: I should have written "no biggie, as it can be confusing unless you're a law dork." Which I will gladly own up to being. :-)
3.9.2007 6:37pm
PersonFromPorlock:
JonC:

OK, I'm wrong on the details... but on the theory that a fact is any assertion that supports a Higher Truth, I will observe that the Bush administration has been pretty passive about gun rights. If it hasn't opposed Emerson, it hasn't done anything to forward the individual rights argument, either.
3.9.2007 8:47pm
JonC:

If it hasn't opposed Emerson, it hasn't done anything to forward the individual rights argument, either.


I assume you mean aside from the Ashcroft memo supporting the individual rights view, or supporting and signing the Protection of Lawful Commerce in Arms act which reiterated the individual rights view? The Bush administration can be criticized on many grounds, but I think one is hard-pressed to make the argument that it's been unfriendly to gun rights. Remember, supporting or opposing cert in any given case is a fairly reactive, not proactive, matter. What else would you have liked the Bush administration and/or the SG to do, aside from supporting Emerson every time the issue has come up for possible SCOTUS review?
3.9.2007 9:02pm
juris_imprudent (mail):
JonC,

Because although the Fifth Circuit adopted the individual rights view of the 2A in his case, it nonetheless upheld his conviction, on grounds that it did not violate his 2A rights.


Eh, as I recall Emerson attempted to have his indictment dismissed - which he won at the District level and then lost at the 5th Cir (and was denied cert at SCotUS). As I also recall, there was discussion that indictments and convictions get treated differently by the appellate courts - the former more loosely then the latter.
3.9.2007 9:42pm
JonC:
Juris: Indeed, you have it right that the issue was dismissal of Emerson's indictment, not reversal of his conviction. The Fifth Circuit reversed the dismissal of the indictment, and Emerson was ultimately convicted on remand. Here's a PDF link to the Fifth Circuit decision.
3.9.2007 10:18pm
juris_imprudent (mail):
Follow-up to my preceding post. The indictment was re-instated, Emerson tried and convicted and is (or at least was in 2004) in the appeals process again. He's already lost at the 5th Cir which relied (partially) on Emerson in shooting down the appeal of his conviction.

As a good friend of mine says, the universe loves irony.
3.9.2007 10:22pm
JonC:
An inmate locator search for "Timothy Emerson" on the Federal Bureau of Prisons site reveals that Emerson has served his time and was released in April 2005.
3.10.2007 7:31am