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US v. Timothy Joe Emerson

All Briefs Have Been Filed
Prosecution Briefs
Defense Briefs
Other links can be found on the Second Amendment Foundation's Emerson page.


APRIL 7, 1999. Emerson District Court Ruling.

http://www.saf.org/1999Emersoncase2amend.html

OCTOBER 16, 2001. Emerson Appeals Court Ruling

http://www.guncite.com/court/fed/99-10331.htm

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

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

DECEMBER 5, 2002. Silveira v. Lockyer ruling

http://www.potowmack.org/silveira.html

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

http://www.potowmack.org/nordyke.html
Another opinion that treats the Second Amendment in a Ninth Circuit case.


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:

It is quite a stretch to go from these words to a right to be armed outside of the law, outside of the knowledge and reach of government. Judge Garwood is only hedging a little bit from NRA sham and fraud. As many times as the real meaning has been pointed out, the NRA’s Stephen Halbrook continues to read a preposterous meaning into Webster's words. He cites them again, more selectively than Judge Garwood, in his amicus brief for the Texas Justice Foundation:

Arms in Webster’s definitions include "war," "hostilities," and "the ensigns armorial of a family." A "stand of arms" was the unit of the day of a soldier’s ordinary military equipment. One definition of coat is "that on which ensigns armorial are portrayed; usually called a coat of arms." Properly read the words would convey: "bear arms in a coat [of arms]," not walk the streets with a concealed weapon in one’s coat pocket.
See full text of Webster's definitions at:
http://www.potowmack.org/thequotes.html#noah
Judge Garwood nevertheless gives his implicit endorsement to this absurdity. One would hope that federal judges have some concern that they not make themselves into laughing stocks. The Fifth Circuit en banc did not remove this foolishness from the record. The endorsement will be used to great demagogic effect. There is nothing else in Judge Garwood’s personal sentiments or Stephen Halbrook’s compulsive ideological formulations that are any more credibile. More on Halbrook at:
http://www.potowmack.org/emerarg.html#halbrook, and
http://www.potowmack.org/emerappi.html#halbrook.

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

A greater harm may be that Judge Parker does not seize the opportunity to explain the difference between citizenship under law and government and individual sovereignty in the State of Nature. He does not explain how there can be an individual right if it contains in it a right to revolution or insurrection.

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):


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.


Most briefs in Printz and Mack (1997) are now available.

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 brief in US v. Emerson to the US Court of Appeals, Fifth District.

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)

David Yassky et amici, amicus curiae, US v Emerson, filed September 3, 1999. (52K)

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 Brief in US v. Emerson to the US Court of Appeals, Fifth District. 144K.

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 Independence Institute's amicus brief in support of defense was filed December 17, 1999. 224K (views best in Internet Explorer)

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

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

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

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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