US v. Timothy Joe Emerson

APRIL 7, 1999. Emerson District Court Ruling.

OCTOBER 16, 2001. Emerson Appeals Court Ruling

http://writ.news.findlaw.com/amar/20011102.html

http://writ.news.findlaw.com/dorf/20011031.html

DECEMBER 5, 2002. Silveira v. Lockyer ruling

Early Comments:
http://www.nationalreview.com/comment/comment-volohk120602.asp

http://www.nytimes.com/2002/12/06/national/06GUNS.html?ex=1040282622&ei=1&en=79f44c130cda179f

http://www.law.com/jsp/article.jsp?id=1039054410124

Like Judge Parker in Emerson, Judge Magill in Silveira objects to the unnecessary arguments. If the 5th Circuit has politicized the judiciary then the 9th Circuit has offered a counter politicization. The substantive debate and discussion have not been taken up in the political arena, in the news media, or among the falsely polarized advocates so the burden of responsibility might just as well fall on the judiciary.

February 18, 2003. Nordyke v. King ruling

US v. Emerson provided a very great but sadly missed opportunity to engage in public debate and to elevate and expand public discourse on what is really at stake in the struggle over firearms regulations. We did not get that with Emerson, Silveira, Nordyke, or Seegars. There might be a chance with Parker Poor Emerson did not fare well. He wins and he loses. He has his precious individual right. He can believe in it. He can build an altar and bow down and worship it, but it means nothing as a matter of law. Emerson was sent back to the District Court for trial and was enventually convicted.

What we did get was Judges Garwood and DeMoss going out of their way to provide many pages of Second Amendment obiter dicta not related to the outcome of the case. The dicta are a gratuitous political sop to the gun lobby and the Libertarian Right which they will use to great benefit. There will be many more additions to the long lists of quotes that add up to nothing of legal or constitutional consequence. We know that the Senate Judiciary Committee report of January, 1982, "The Right to Keep and Bear Arms," which has been used with great demagogic effect was written by NRA operatives. We can suspect that Attorney General Ashcroft's May 17, 2001, letter to the NRA was written with the collusion of NRA operatives. It did coincide with the NRA convention. Ashcroft's 2004 memorandum was probably also written by NRA operatives, http://www.usdoj.gov/olc/secondamendment2.htm. Can we now suspect that the obiter dicta in Emerson were written with the collusion of NRA operatives? They probably weren't but that does not matter. The demagogic effect is the same. What the dicta prove is the pervasiveness of right wing anti-government ideologies and the failure of everyone else to address them. Emerson's appeal to the Fifth Circuit en banc— that is, all the judges on the Fifth Circuit— was rejected. The Fifth Circuit could have striken Garwood's personal opinion out of the record as out of order and disruptive to other cases in the Fifth Circuit. Emerson's appeal appeal to the Supreme Court was denied.

The gun controllers marginalized the significance of Emerson. They thought this was a legal and constitutional no-brainer. So far they have lost the demagogic contest. The news organs and the politicians almost completely ignored it.

Judge Garwood’s opinion, with no force in law, will serve the same demagogic public relations purpose as the Senate Judiciary Committee report,the Ashcroft letter, and Ashcroft memorandum. The opinion has already been proclaim under one title as, "A Big Win for the Insurrectionists." Are federal judges who are under oath of public office to preserve protect and defend the Constitution against all enemies foreign and domestic in the business of giving "wins" to insurrectionists? It is still nevertheless true, as we pointed out in our amicus brief, that James Madison, Patrick Henry, and Joseph Story were not describing the civil rights of private individuals to be armed outside of the law. We take this up again in our amicus brief in Parker. It is abundantly clear from the history of the early Republic that the militia clauses of the Constitution, the Second Amendment and the Militia Act of 1792 (our Appendix C) were about the disposition of military force. None of the sources of the long lists of quotes which abound in gun lobby pseudoscholarship, on the internet and in Judge Garwood’s opinion objected to the inventory requirement of the Militia Act. Absolutely no one between 1792 and 1903 (when the Militia Act was replaced by the Dick Act which was an act of military reorganization) expressed any objection to the inventory requirement. Whatever individual right there was was not a right to be armed outside of the knowledge and reach of government.

Private individuals can have an individual right to gun ownership right up to the point of a right to individual sovereignty. The right to individual sovereignty expressed as the "armed populace at large," the right to be armed outside of any legally authorized or permitted purpose (our Appendix H), is what the NRA argues for explicitly in briefs its has filed in other cases in federal court (.../nraperp.html, .../pzpet.html .../nrareno3.html). There can be no right secured by government to individual sovereignty. Individual sovereigns by definition do not consent to be governed, do not give "just powers" to government, do not "surrender up the executive power of the law of Nature," do not recognize a higher authority that gives binding law. They make a treaty not a government. The Fifth Circuit would have needed to look no farther than our amicus brief to find this adequately stated. There is no indication that the judges gave any serious attention to the amicus briefs — for or against.

Judge Garwood's opinion although citing David Young's Origins of the Second Amendment as his source reads like a Stephen Halbrook's tract. He even quotes from Noah Webster:

A similar indication that "bear arms" was a general description of the carrying of arms by anyone is found in the 1828 edition of Webster's American Dictionary of the English Language; where the third definition of bear reads: "[t]o wear; to bear as a mark of authority or distinction, as, to bear a sword, a badge, a name; to bear arms in a coat."

We conclude that the phrase "bear arms" refers generally to the carrying or wearing of arms. It is certainly proper to use the phrase in reference to the carrying or wearing of arms by a soldier or militiaman; thus, the context in which "bear arms" appears may indicate that it refers to a military situation, e.g. the conscientious objector clauses cited by amici supporting the government. However, amici's argument that "bear arms" was exclusively, or even usually, used to only refer to the carrying or wearing of arms by a soldier or militiaman must be rejected.

Noah Webster, a prominent federalist, defined "bear" as "to carry" or "to wear. . . as, to bear a sword, a badge, a name; to bear arms in a coat." Webster, An American Dictionary of the English Language (1828). "To bear arms in a coat" typically meant to carry a pistol in a coat for self defense.

The most significant part of the ruling is Judge Parker's opinion:

ROBERT M. PARKER, Circuit Judge, specially concurring:

I concur in the opinion except for Section V. I choose not to join Section V, which concludes that the right to keep and bear arms under the Second Amendment is an individual right, because it is dicta and is therefore not binding on us or on any other court. The determination whether the rights bestowed by the Second Amendment are collective or individual is entirely unnecessary to resolve this case and has no bearing on the judgment we dictate by this opinion. The fact that the 84 pages of dicta contained in Section V are interesting, scholarly, and well written does not change the fact that they are dicta and amount to at best an advisory treatise on this long-running debate.

As federal judges it is our special charge to avoid constitutional questions when the outcome of the case does not turn on how we answer. See Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105 (1944)("If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable."); Walton v. Alexander, 20 F.3d 1350, 1356 (5th Cir. 1994)(Garwood, J., concurring specially)("It is settled that courts have a strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration.")(internal quotations omitted). Following this cardinal rule, we will not, for example, pick and choose among dueling constitutional theories when under any construction the challenged provision is invalid. See Hooper v. Bernalillo County Assessor, 472 U.S. 612, 621 n.11 (1985). Nor will we decide a constitutional question when under any construction the challenged provision must be sustained. See O'Connor v. Nevada, 27 F.3d 357, 361 (9th Cir. 1994); Bullock v. Minnesota, 611 F.2d 258, 260 (8th Cir. 1979). Furthermore, the fact that a trial court passed on a novel question of constitutional law does not require us to do likewise. Appellate courts are supposed to review judgments, not opinions. See Texas v. Hopwood, 518 U.S. 1033, 1033 (1996). Here, whether "the district court erred in adopting an individual rights or standard model as the basis for its construction of the Second Amendment," Maj. Op. at 23, is not a question that affects the outcome of this case no matter how it is answered. In holding that § 922(g)(8) is not infirm as to Emerson, and at the same time finding an individual right to gunownership, the majority today departs from these sound precepts of judicial restraint.

No doubt the special interests and academics on both sides of this debate will take great interest in the fact that at long last some court has determined (albeit in dicta) that the Second Amendment bestows an individual right. The real issue, however, is the fact that whatever the nature or parameters of the Second Amendment right, be it collective or individual, it is a right subject to reasonable regulation. The debate, therefore, over the nature of the right is misplaced. In the final analysis, whether the right to keep and bear arms is collective or individual is of no legal consequence. It is, as duly noted by the majority opinion, a right subject to reasonable regulation. If determining that Emerson had an individual Second Amendment right that could have been successfully asserted as a defense against the charge of violating § 922(g)(8), then the issue would be cloaked with legal significance. As it stands, it makes no difference. Section 922(g)(8) is simply another example of a reasonable restriction on whatever right is contained in the Second Amendment.

And whatever the scope of the claimed Second Amendment right, no responsible individual or organization would suggest that it would protect Emerson's possession of the other guns found in his military-style arsenal the day the federal indictment was handed down. In addition to the Beretta nine millimeter pistol at issue here, Emerson had a second Beretta like the first, a semi-automatic M-1 carbine, an SKS assault rifle with bayonet, and a semi-automatic M-14 assault rifle. Nor would anyone suggest that Emerson's claimed right to keep and bear arms supercedes [sic] that of his wife, their daughter, and of others to be free from bodily harm or threats of harm. Though I see no mention of it in the majority's opinion, the evidence shows that Emerson pointed the Beretta at his wife and daughter when the two went to his office to retrieve an insurance payment. When his wife moved to retrieve her shoes, Emerson cocked the hammer and made ready to fire. Emerson's instability and threatening conduct also manifested itself in comments to his office staff and the police. Emerson told an employee that he had an AK-47 and in the same breath that he planned to pay a visit to his wife's boyfriend. To a police officer he said that if any of his wife's friends were to set foot on his property they would "be found dead in the parking lot."

If the majority was only filling the Federal Reporter with page after page of non-binding dicta there would be no need for me to write separately. As I have said, nothing in this case turns on the original meaning of the Second Amendment, so no court need follow what the majority has said in that regard. Unfortunately, however, the majority's exposition pertains to one of the most hotly-contested issues of the day. By overreaching in the area of Second Amendment law, the majority stirs this controversy without necessity when prudence and respect for stare decisis calls for it to say nothing at all. See Cass R. Sunstein, One Case at a Time: Judicial Minimalism and the Supreme Court 5 (1999)("[A] minimalist path usually--not always, but usually--makes a good deal of sense when the Court is dealing with a constitutional issue of high complexity about which many people feel deeply and on which the nation is divided (on moral or other grounds).") (italics in original). Indeed, in the end, the majority today may have done more harm than good for those who embrace a right to gunownership.
end of Parker opinion

Nothing fundamental has been resolved in law or the public mind and we are still not likely to see any substantive debate or meaningful public enlightenment. US v. Emerson may well prove to be as politically siginficant as Roe v. Wade but still with great credit to the "rabidly antigun" Washington Post few people have heard of it. We still don't know if citizens, gun owners and nongunowners alike, are citizens under law and government or individual sovereigns, laws unto themselves, in the State of Nature which is the state of anarchy. We still don't know if the Constitution is a frame of government with "just powers" that derive from the consent of the governed or a treaty among sovereign individuals who give no more than word of honor and promise of good faith. The "rabidly antigun" Washington Post still will not print in full context what James Madison was really describing in Federalist Paper No. 46. See Appendix I. The gun controllers will still be suing the gun manufacturers and promoting trigger locks. We will get more of the same business as usual: small-minded, cynical, obstructionist politics. The gun lobby still has not won a legally or constitutionally meaningful individual right but the gun lobby has another demagogic club in its arsenal to defeat legislation as if defeating legislation is what secures a right.

A real issue becomes, what kind of "Patrons of Anarchy" (see Ashcroft letter, August 31) have been placed on the federal judiciary in past twenty years who do not know the difference between civil society and anarchy? That will not be taken up either nor will the outrageous politicization of the federal judiciary to support a preposterous ideological agenda.

Chief Jusice Rehnquist wrote in The Supreme Court (1987):

From the time of John Marshall, the Court has said that the authority to declare an act of Congress unconstitutional is the most awesome responsibility that any court could possess, and the authrority to do so must be exercised with extraordinary circumspection. The first canon violated by the Dred Scott decision is based on this view, and it holds that the Court will never decide a question of constitutional law unless the decision of that case is absolutely essential to dispose of the case before it.

US v. Emerson, Federal District Court, Memorandum Opinion, March 30, 1999; one sentence amended April 7, 1999; provided by Second Amendment Foundation.

The terms of gun ownership are not a tempest in culture war teacup between gun lovers and gun haters. They involve the most fundamental political issues of law, government and citizenship. These are the issues that are at stake in US v. Emerson.

Some briefs in US v. Lopez (1995) involving the Gun-Free School Zone Act are now available.

Most briefs in NRA v. Reno are now available.

Prosecution Briefs

Federal Prosecutor's reply brief filed January 27, 2000. 105K.

Amici Curiae In Support of the Prosecution (The Federal District Attorney's Office)

Potowmack Institute, amicus curiae, US v Emerson, filed September 3, 1999. (58K)

Appendix A (96K)

John Kenneth Rowland, "Resetting the Terms of Debate on the Second Amendment: New Light on the Original Meaning of the Phrase "to Bear Arms" Based on 300 Historical Uses of the Term in a Military Context in Early America, 1618-1791." Original historical research and analysis prepared for the Fifth Circuit in Emerson. Excerpts from Rowland's previously unpublished PhD dissertation on the right to keep and bear arms is provide at .../1197row.html. (79K)
Appendix B

Testimony of Norman Olson of the Michigan Militia and John Trochman and Bob Fletcher of the Militia of Montana before the Senate Subcommittee on Anti-Terrorism, June 15, 1995. (26K)
Appendix C

The Militia Act of 1792; Militia Deficiencies. (23K)
Appendix D

Sources of Quotes (14K)
1. "The Founders and the AK-47," Sue Wimmershoff-Caplan, a member of the NRA's National Board, Washington Post, July 6, 1989, p. A17.
2. Page 7 from NRA Executive Vice President Wayne LaPierre's Guns, Crime, and Freedom (1994)
3. Page 25 from David Kopel, "Trust the People: The Case Against Gun Control," Cato Institute Policy Analysis No. 109 (1988).
4. Page 202 from Newt Gingrich, To Renew America. (1995).
5. Sen. Stevens, page S16315, The Congressional Record, November 19, 1993.

Appendix E

Second Amendment Foundation amicus curiae in US v. Warin (1976); reply briefs. (90K)
Appendix F

Excerpts from the Libertarian Party Platform. (11K)
Appendix G

"Libertarians and Conservatives," Ernest van den Haag, National Review June 8, 1979. (59K)
Appendix H

Max Weber: "the monopoly on violence," original source. (5K)
Appendix I

The Meaning They Seek: James Madison, Patrick Henry, Joseph Story, John Adams; Federalist Paper No. 46 in the LaPierre's law review list and in Washington Post. (59K)
Appendix J

Ron Steward, editorial, American Firearms Industry, December, 1997; Samuel Colt. (14K)
Appendix K

The Tory Act, January 2, 1776. (9K)
Appendix L

Thomas Jefferson: Query IX, "Military Force," Notes on the State of Virginia. (5K)

---

These Appendices were not filed with the court. They are included for their general relevance.

Appendix Q


"The Return of Militia," inventory of militia resources including privately owned weapons authorized by the Militia Act of 1792, Appendix C. We did not find the inventory until after the amicus brief was filed. The point was made that the President as commander and chief has a right and a need to know who the militiamen are and what the militia resources are as a national resource. In the eighteenth century the public had a claim on privately owned weapons for public purposes.
Appendix R

Sketches of American Policy, Noah Webster, 1785. Influential pamphlet widely circulated before the Constitution Convention in 1787. Webster characterized the "people at large" as anarchy. See the NRA's amicus brief in Perpich for the "populace at large" as the militia.(115K)
Appendix S

Examination of the Leading Principles of the Federal Constitution, 1787. Pamphlet second only to the Federalist Papers in influence encouraging ratification of the Constitution. (97K)
Appendix T

Texas v. White (1869) Chief Justice Salmon Chase rules secession is illegal. Individual secession is implied in the district court's ruling in Emerson.
Part 1: Statement of the Case. 17K.
Part 2: Attorneys for the Complainant. 16K.
Part 3: Attorneys for the Defendants. 30K.
Part 4: Opinions of Chief Justice Salmon Chase and Justice Robert Grier and Justice Noah Swayne. 61K.]
Appendix U

"A Plan for the General Arrangement of the Militia of the United States", Henry Knox, 1786. The context of the time on the militia was military organization. No "personal right" was mentioned. (63K)
Appendix V

"Sentiments on a Peace Establishment", George Washington, 1783. The context of the time on the militia was military organization. No "personal right" was mentioned or any support given to the NRA's "armed populace at large" fantasy. See the NRA in Perpich below. (43K)
Appendix W

Houston v. Moore (1820). Associate Justice Story's expresses himself on the "palladium of the liberties of a republic" where it counts.
The immediate issue in this case was federal and state jurisdiction to try noncompliance with militia orders. The context provides much enlightenment on the militia institution. Militia duty was conscript duty more closely resembling the conscript duty of the Selective Service Acts of the twentieth century. There was no mention of a "personal right" to be armed outside of lawful authority or any support given to the NRA's "armed populace at large" fantasy. See the NRA in Perpich below.
Part 1: Statement of the case; arguments of plaintiff and defendant. 22K.
Part 2: Opinion of Justice Bushrod Washington. 37K.
Part 3: Opinion of Justice Johnson. 28K.
Part 4: Opinion of Justice Story. 52K.
Appendix X

Martin v. Mott (1827). Associate Justice Story's expresses himself on the "palladium of the liberties of a republic" where it counts. 30K.
Appendix Y

In Perpich v. Department of Defense, The Washington Legal Foundation, including as amici a short list of rightwing congressional gun lobby minions (Helms and Hyde inter allia), argued for the authority of the Department of Defense to command the National Guard on a foreign mission over the objections of state governors. (56K)
Appendix Z

The Firearms Civil Rights Legal Defense Fund's amicus in Perpich v. Department of Defense. The NRA argued that the militia is the "armed populace at large" separate from the National Guard. It was a nice try, but, while upholding the authority of the Federal Government over the National Guard, the Supreme Court did not give any credibility to the NRA's armed populace-at-large fantasy. See Noah Webster on the "people at large." (46K)

Ralph Brock, amicus curiae, US v Emerson, filed September 3, 1999. (56K)

Center to Prevent Handgun Violence et amici, amicus curiae, US v Emerson, filed September 3, 1999.

Domestic and family violence network et amici, amicus curiae, US v Emerson, filed September 3, 1999. (31K)

Education Fund to End Handgun Violence, amicus curiae, US v Emerson, filed September 3, 1999. (38K)

Defense Briefs

Defense attorneys are obligated to represent their clients not promote a childish political fantasy. It appears from the defense brief that the defense has learned from the amicus briefs in support of the prosecution that the Second Amendment constitutional argument does not hold up. Rather than rely on the Second Amendment, the defense wants to direct the court's attention toward the restraining order and the ignorance-of-the-law excuse. While repeating some conventional Second Amendment specious points, the defense makes no attempt to refute the historical, constitutional and political theory arguments on the prosecution side. The Fifth Circuit may still find opportunity to address the constitutional arguments and tell some people they cannot have their childish political fantasy. But, at this point it is not certain that anything substantive will come out of the Emerson case. One valuable outcome will be the long list below of amici in support of the defense. We can hope they have made their best arguments. One thing for certain is that we will not see anything about it in what the NRA calls "the rabidly, antigun" Washington Post. Public enlightenment is not what they do. The function of the Washington Post, representative of the news media in general, in the present political environment is to keep public discourse and public consciousness very narrowly confined. We can't have the people becoming informed about their political existence. We can't force genuine political leadership on members of Congress. The armed populace fantasy is well served. In the experience of the Potowmack Institute NPR's Diane Rehm ranks second only to the Washington Post in dereliction.

Regardless of the dereliction of the news media, the Emerson case is still an opportunity to expand public debate out of the mindless rantings of the message boards that abound on the internet into meaningful public discourse in the 2000 election season. This is where we can get serious and raise the issues in public with politicians on the campaign trail that are raised in the Potowmack Institute's amicus brief and the other amici and provide some enlightenment on the contours of citizenship: Are gun owners citizens under law and government or are they individual sovereigns, laws unto themselves, in the State of Nature which is the state of anarchy? Or phrased another way, Is the Constitution a frame of government with "just powers" that derive from the consent of the governed or a treaty among sovereign individual who give no more that word of honor and promise of good faith? Can politicians explain the difference? Can they explain what the consent to be governed imposes on private individual citizens? These are not new issues. If at first we don't succeed, we read the instruction. If we do not raise substantive issues, the outcome of Emerson will likely go by unnoticed and unremarked upon. Gun lobby resentment will go underground and we will return to the business as usual routine of cynical, small-mind, obstructionist politics. The Washington Post will print again the gun lobby's version of Federalist Paper No. 46. Diane Rehm will do another program on smart guns. Handgun Control will go back to suing the gun manufacturers and the Clinton Administration will go back to promoting gun safety. The establishment, centrist foundation will spend another few million collecting public health statistics.

Amici Curiae In Support of the Defense (Timothy Joe Emerson)

Second Amendment Foundation's amicus brief in support of the defense was filed December 19, 1999.

State of Alabama's amicus brief in support of the defense was filed December 20, 1999. 55K.

Citizens Committee for the Right to Keep and Bear Arms's amicus brief in support of defense was filed December 21, 1999. 67K

The amicus brief of Jews for the Preservation of Firearm Ownership, Women Against Gun Control, Southern States Police Benevolence Association in support of the defense was filed December 20, 1999. 67K

The National Association of Criminal Defense Attorneys' amicus brief in support of the defense was filed December 20, 1999. 41K

The NACDL does not mention the Second Amendment at all. The issues that it raises are likely issues on which Emerson will be decided.

David Kopel is quoted in the Potowmack Institute's amicus, page 12 and Appendix D: "The tools of political dissent should be privately owned and unregistered." This is an unequivocal statement of political consciousness and agenda to maintain a balance of power between a privately armed populace and any and all government. The Potowmack Institute (in its previous incarnation as the Firearms Policy Journal) told Kopel in 1996 that he had "much to explain." He still has much to explain. Kopel provides a list of the state constitutions' bills of rights with comments which only prove the point in the Potowmack Institute amicus that there was much confusion almost from the beginning of the Republic about what the right to arms was all about. The confusion increased as the militia institution died. The first step in clearing up the confusion is to get the "rabidly anti-gun" Washington Post to print in full context what James Madison was really describing in Federalist Paper No. 46 and make an issue of what is the real agenda of people who have to be blatantly dishonest to make their case. See Appendix I. The amici in support of Emerson do not have to worry that the Washington Post will commit public enlightenment. Kopel goes on to list court cases about gun rights with very little argument or comment.

In Appendix A historian John Kenneth Rowland analyzes 300 uses of "to bear arms" in official documents of the 17th and 18th centuries ending his analysis intentionally in 1791 to get at the original public consciousness and avoid the later confusions that emerged and Kopel exploits to further a very contemporary agenda.

Kopel ends his brief:

Courts in the above states have also upheld other, reasonable gun control laws. As the state experience shows, judicial protection of the right to arms does not lead to anarchy, or to any of the other ridiculous scenarios posited by appellant's amici.

CONCLUSION
The judgment of the District Court should be affirmed.

Respectfully submitted,
David B. Kopel
Counsel for Amicus Curiae

Kopel's Independence Institute describes itself "as a public policy research organization dedicated to the principles of the Declaration of Independence." The Declaration of Independence was a charter for revolution. It asserted the natural right "to alter or to abolish" one government and then "to institute new government." Kopel might have taken the opportunity to explain something about the new government and what it imposes by way of the rule of law on individual citizens. Are gun owners who possess an individual right citizens under law and government or individual sovereigns, laws unto themselves, in the State of Nature, which is the state of anarchy? We might have learned something about whether or not they consent to be governed, give "just powers" to government, "surrender up the Executive Power of the law of Nature", and give "a right to the Commonwealth to imploy" their "force for the Execution of the Judgments of the Commonwealth" whenever "called to it". Quitting the State of Nature and entering into political community is the "ridiculous scenario" we need to have some clarification on before we start talking about individual civil rights. There seems to be much difficulty grasping where the logic of the armed populace fantasy leads.

National Rifle Association's amicus brief in support of the defense was filed December 20, 1999. 53K.

The NRA gives much convoluted legal support to the basic arguments of the District Court. What is important here is that when the defense attorneys for Emerson saw the arguments against the Second Amendment defense they apparently realized that the Second Amendment was not any help to their client. Emerson will very likely be decided on other issues. When it really gets down to it the armed populace fantasy that has been formulated in the law journals over the past twenty years is not a defense that any lawyer will want to argue in court. We can hope that the Fifth Circuit will still find some excuse to take up the Second Amendment and provide some enlightenment. How the defense and the court treats this case is a news story. The NRA can find relief that the outcome will not be reported in the "rabidly, anti-gun" Washington Post. The NRA will still be able to engage in its business as usual of small-minded, cynical, obstructionist politics to have its armed populace fantasy by defeating legislation.

Joint brief of Doctors for Responsible Gun Ownership and the Independent Women's Forum in support of the defense was filed December 20, 1999.

Gun Owners Foundation's amicus brief in support of the defense was filed December 20, 1999.

The Gun Owners Foundation is part of Gun Owners of America. The Gun Owners Foundation provides only 1500 words of text and devotes the rest of its brief to listing the great volume of pseudoscholarship that has been produced in recent years. We can hope the court will find an opportunity to examine the pseudoscholarship for its true belief that finds the meaning it seeks. See Appendix I.

The Texas Justice Foundation's amicus brief in support of the defense was filed December 17, 1999. 59K

Submitted to the court by Stephen P. Halbrook. Halbrook did not find the opportunity to explain how constitutional government fits in between authoritarian absolutism and his "libertarian republicans."

Texas State Rifle Association's amicus brief in support of the defense was filed December 17, 1999. 49K

The Texas State Rifle Association is concerned with unconstitutional intrusions of federal regulation into areas of state jurisdiction through misguided gun control laws. It has no appreciation of the implications of the circumstance that the Second Amendment and the early militia acts were about military organization not civil regulation and personal rights.

The Ethan Allen Institute and the Heartland Institute's joint amicus brief in support of the defense was filed December 17, 1999.

The Congress of Racial Equality's amicus brief in support of the defense was filed December 17, 1999.

Law Enforcement Alliance of America's amicus brief in support of the defense was filed December 17, 1999.

Academics for the Second Amendment's amicus brief in support of the defense was filed December 20, 1999.

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