46 F. Supp. 2d 598
April 7, 1999, Decided

Opinion by SAM R. CUMMINGS

Defendant Timothy Joe Emerson ("Emerson") moves to dismiss the Indictment against him, claiming that the statute he is prosecuted under, 18 U.S.C. § 922(g)(8), is an unconstitutional exercise of congressional power under the Second Amendment to the United States Constitution. For the reasons stated below, the Court GRANTS Emerson's Motion to Dismiss.


On August 28, 1998, Emerson's wife, Sacha, filed a petition for divorce and application for a temporary restraining order in the 119th District Court of Tom Green County, Texas. The petition stated no factual basis for relief other than the necessary recitals required under the Texas Family Code regarding domicile, service of process, dates of marriage and separation, and the "insupportability" of the marriage. The application for a temporary restraining order--essentially a form order frequently used in Texas divorce procedure--sought to enjoin Emerson from engaging in various financial transactions to maintain the financial status quo and from making threatening communications or actual attacks upon his wife during the pendency of the divorce proceedings.

On September 4, 1998, the Honorable John E. Sutton held a hearing on Mrs. Emerson's application for a temporary restraining order. Mrs. Emerson was represented by an attorney at that hearing, and Mr. Emerson appeared pro se. Mrs. Emerson testified about her economic situation, her needs in the way of temporary spousal support and child support, and her desires regarding temporary conservatorship of their minor child.

During the hearing, Mrs. Emerson alleged that her husband threatened over the telephone to kill the man with whom Mrs. Emerson had been having an adulterous affair. However, no evidence was adduced concerning any acts of violence or threatened violence by Mr. Emerson against any member of his family, and the district court made no findings to that effect. Furthermore, the court did not admonish Mr. Emerson that if he granted the temporary restraining order, Mr. Emerson would be subject to federal criminal prosecution merely for possessing a firearm while being subject to the order.


As stated above, Emerson was indicted for possession of a firearm while being under a restraining order, in violation of 18 U.S.C. § 922(g)(8) ("the Act"). This statute states that:

(g) It shall be unlawful for any person--
(8) who is subject to a court order that--

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury . . . .
Second Amendment

Emerson claims that 18 U.S.C. § 922(g)(8) violates his rights under the Second Amendment to the United States Constitution. The Second Amendment states that:

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.
Only if the Second Amendment guarantees Emerson a personal right to bear arms can he claim a constitutional violation. Whether the Second Amendment recognizes an individual right to keep and bear arms is an issue of first impression within the Fifth Circuit. Emerson claims that he has a personal right to bear arms which the Act infringes, while at oral argument on the Motion to Dismiss, the Government claimed it is "well settled" that the Second Amendment creates a right held by the States and does not protect an individual right to bear arms.

Second Amendment Schools of Thought

Two main schools of thought have developed on the issue of whether the Second Amendment recognizes individual or collective rights. These schools of thought are referred to as the "states' rights," or "collective rights," school and the "individual rights" school. The former group cites the opening phrase of the amendment, along with subsequent case law, as authority for the idea that the right only allows states to establish and maintain militias, and in no way creates or protects an individual right to own arms.  Due to changes in the political climate over the last two centuries and the rise of National Guard organizations among the states, states' rights theorists argue that the Second Amendment is an anachronism, and that there is no longer a need to protect any right to private gun ownership.

The individual rights theorists, supporting what has become known in the academic literature as the "Standard Model," argue that  the amendment protects an individual right inherent in the concept of ordered liberty, and resist any attempt to circumscribe such a right.

Textual Analysis

A textual analysis of the Second Amendment supports an individual right to bear arms. A distinguishing characteristic of the Second Amendment is the inclusion of an opening clause or preamble, which sets out its purpose. No similar clause is found in any other amendment.  While states' rights theorists seize upon this first clause to the exclusion of the second, both clauses should be read in pari materia, to give effect and harmonize both clauses, rather than construe them as being mutually exclusive.

The amendment reads "[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." Within the amendment are two distinct clauses, the first subordinate and the second independent. If the amendment consisted solely of its independent clause, "the right of the people to keep and bear Arms, shall not be infringed," then there would be no question whether the right is individual in nature.

Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right to bear arms. However, if the amendment truly meant what collective rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized.

Historical Analysis

"There is a long tradition of widespread lawful gun ownership by private individuals in this country."  A historical examination of the right to bear arms, from English antecedents to the drafting of the Second Amendment, bears proof that the right to bear arms has consistently been, and should still be, construed as an individual right.

The Colonial Right To Bear Arms

The American colonists exercised their right to bear arms under the English Bill of Rights. As in England, the colonial militia played primarily a defensive role, with armies of volunteers organized whenever a campaign was necessary.  Statutes in effect bore evidence of an individual right to bear arms during colonial times. For example, a 1640 Virginia statute required "all masters of families" to furnish themselves and "all those of their families which shall be capable of arms . . . with arms both offensive and defensive...."  The individual right to bear arms, a right recognized in both England and the colonies, was a crucial factor in the colonists' victory over the British army in the Revolutionary War. Without that individual right, the colonists never could have won the Revolutionary War. After declaring independence from England and establishing a new government through the Constitution, the American founders sought to codify the individual right to bear arms, as did their forebears one hundred years earlier in the English Bill of Rights.

The Ratification Debates

A foundation of American political thought during the Revolutionary period was the well justified concern about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is "a chimerical idea to suppose that a country like this could ever be enslaved . . . Is it possible . . . that an army could be raised for the purpose of enslaving themselves or their brethren? or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?"  Noah Webster similarly argued:

Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.

George Mason argued the importance of the militia and right to bear arms by reminding his compatriots of England's efforts "to disarm the people; that it was the best and most effectual way to enslave them . . . by totally disusing and neglecting the militia."  He also clarified that under prevailing practice the militia included all people, rich and poor. "Who are the militia? They consist now of the whole people, except a few public officers." Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.

The framers thought the personal right to bear arms to be a paramount right by which other rights could be protected. Therefore, writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included "the right to keep and bear arms" in a list of basic "human rights" which he proposed to be added to the Constitution.

Patrick Henry, also in the Virginia convention, eloquently argued for the dual rights to arms and resistance to oppression: "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined." Thus, the federalists agreed that an armed populace was the ultimate check on tyranny.

While both Monroe and Adams supported ratification of the Constitution, its most influential framer was James Madison. In The Federalist No. 46, he confidently contrasted the federal government of the United States to the European despotisms which he contemptuously described as "afraid to trust the people with arms." He assured his fellow citizens that they need never fear their government because of "the advantage of being armed...."

By January of 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several specific amendments were proposed, but were not adopted at the time the Constitution was ratified. The Pennsylvania convention, for example, debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to amendments to assure ratification.  Samuel Adams proposed that the Constitution

Be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of their grievances: or to subject the people to unreasonable searches and seizures.
Drafting the Second Amendment

When the first Congress convened on March 4, 1789, James Madison, who had previously advocated passage of the Constitution without amendments, now pressed his colleagues to act on a bill of rights.  When his initial efforts failed to produce any response, he drafted his own version of a bill of rights and presented them to members of Congress on June 8 of that year. His version of what would later be the second amendment read:

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.
That Madison envisioned a personal right to bear arms, rather than merely a right for the states to organize militias, is evident from his desired placement of the right in the Constitution. Madison's original plan was to designate the amendments as inserts between specific sections of the existing Constitution, rather than as separate amendments added to the end of the document. Madison did not designate the right to keep and bear arms as a limitation of the militia clause of Section 8 of Article I. Rather, he placed it as part of a group of provisions (with freedom of speech and the press) to be inserted in "Article 1st, Section 9, between Clauses 3 and 4."  Such a designation would have placed this right immediately following the few individual rights protected in the original constitution, dealing with the suspension of bills of attainder, habeas corpus, and ex post facto laws. Thus Madison aligned the right to bear arms along with the other individual rights of freedom of religion and the press, rather than with congressional power to regulate the militia. This suggested placement of the Second Amendment reflected recognition of an individual right, rather than a right dependent upon the existence of the militia.

At that point, the Senate took up the Bill of Rights. Unfortunately, Senate debate on the issue was held in secret, and therefore no record exists of that body's deliberations.  The Senate form of the second amendment now described the militia not as "the best security" of a free state, but as "necessary to the security" of a free state, an even stronger endorsement than Madison's original description. The Senators also omitted the phrase describing the militia as "composed of the body of the people." Elbridge Gerry's fear that future Congresses might expand on the religious exemption clause evidently convinced the Senate to eliminate that clause as well. Even more important, however, was the Senate's refusal of a motion to add "for the common defense" after the phrase "to keep and bear arms.". Thus the American Bill of Rights, like the English Bill of Rights, recognized the individual's right to have weapons for his own defense, rather than for collective defense. In this form, Congress approved the Second Amendment and sent the Bill of Rights to the state legislatures for ratification.

Structural Analysis

The structure of the Second Amendment within the Bill of Rights proves that the right to bear arms is an individual right, rather than a collective one. The collective rights' idea that the Second Amendment can only be viewed in terms of state or federal power "ignores the implication that might be drawn from the Second, Ninth, and Tenth Amendments: the citizenry itself can be viewed as an important third component of republican governance as far as it stands ready to defend republican liberty against the depredations of the other two structures, however futile that might appear as a practical matter." Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 651 (1989).

Furthermore, the very inclusion of the right to keep and bear arms in the Bill of Rights shows that the framers of the Constitution considered it an individual right. "After all, the Bill of Rights is not a bill of states' rights, but the bill of rights retained by the people." Of the first ten amendments to the Constitution, only the Tenth concerns itself with the rights of the states, and refers to such rights in addition to, not instead of, individual rights. Thus the structure of the Second Amendment, viewed in the context of the entire Bill of Rights, evinces an intent to recognize an individual right retained by the people.

Judicial Interpretations

The Court notes that several other federal courts have held that the Second Amendment does not establish an individual right to keep and bear arms, but rather a "collective" right, or a right held by the states. However, the only modern Second Amendment case from the Supreme Court is United States v. Miller, 307 U.S. 174 (1939). Jack Miller was charged with moving a sawed-off shotgun in interstate commerce in violation of the National Firearms Act of 1934. Among other things, Miller had not registered the firearm, as required by the Act. The court below dismissed the charge, accepting Miller's argument that the Act violated the Second Amendment.

The Supreme Court reversed unanimously, with Justice McReynolds writing the opinion. Interestingly enough, he emphasized that there was no evidence showing that a sawed-off shotgun "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia."  And "certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." Thus, Miller might have had a tenable argument had he been able to show that he was keeping or bearing  a weapon that clearly had a potential military use. Justice McReynolds went on to describe the purpose of the Second Amendment as "assuring the continuation and rendering possible the effectiveness of [the Militia]."

It is difficult to interpret Miller as rendering the Second Amendment meaningless as a control on Congress. Ironically, one can read Miller as supporting some of the most extreme anti-gun control arguments; for example, that the individual citizen has a right to keep and bear bazookas,  rocket launchers, and other armaments that are clearly used for modern warfare, including, of course, assault weapons. Under Miller, arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, thus might turn on the usefulness of such guns in military settings.

Miller did not answer the crucial question of whether the Second Amendment embodies an individual or collective right to bear arms. Although its holding has been used to justify many previous lower federal court rulings circumscribing Second Amendment rights, the Court in Miller simply chose a very narrow way to rule on the issue of gun possession under the Second Amendment, and left for another day further questions of Second Amendment construction.

Prudential Concerns

Some scholars have argued that even if the original intent of the Second Amendment was to provide an individual right to bear arms, modern-day prudential concerns about social costs outweigh such original intent and should govern current review of the amendment. However, there is a problem with such reasoning. If one accepts the plausibility of any of the arguments on behalf of a strong reading of the Second Amendment, but, nevertheless, rejects them in the name of social prudence and the present-day consequences of an individual right to bear arms, why do we not apply such consequentialist criteria to each and every part of the Bill of Rights?

As Professor Ronald Dworkin has argued, what it means to take rights seriously is that one will honor them even when there is significant social cost in doing so. Protecting freedom of speech, the rights of criminal defendants, or any other part of the Bill of Rights has significant costs--criminals going free, oppressed groups having to hear viciously racist speech and so on--consequences which we take for granted in defending the Bill of Rights. This mind-set changes, however, when the Second Amendment is concerned. "Cost-benefit" analysis, rightly or wrongly, has become viewed as a "conservative" weapon to attack liberal rights. Yet the tables are strikingly turned when the Second Amendment comes into play. Here "conservatives" argue in effect that social costs are irrelevant and "liberals" argue for a notion of the "living Constitution" and "changed circumstances" that would have the practical consequence of erasing the Second Amendment from the Constitution.

Other commentators, including Justice Scalia, have argued that even if there would be "few tears shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard, this would simply show that the Founders were right when they feared that some future generation might wish to abandon liberties that they considered essential, and so sought to protect those liberties in a Bill of Rights. We may tolerate the abridgement of property rights and the elimination of a right to bear arms; but we should not pretend that these are not reductions of rights."

Thus, concerns about the social costs of enforcing the Second Amendment must be outweighed by considering the lengths to which the federal courts have gone to uphold other rights in the Constitution. The rights of the Second Amendment should   be as zealously guarded as the other individual liberties enshrined in the Bill of Rights.

Constitutionality of 18 U.S.C. § 922(g)(8)

18 U.S.C. § 922(g)(8) is unconstitutional because it allows a state court divorce proceeding, without particularized findings of the threat of future violence, to automatically deprive a citizen of his Second Amendment rights. The statute allows, but does not require, that the restraining order include a finding that the person under the order represents a credible threat to the physical safety of the intimate partner or child. 18 U.S.C. § 922(g)(8)(C)(i). If the statute only criminalized gun possession based upon court orders with particularized findings of the likelihood of violence, then the statute would not be so offensive, because there would be a reasonable nexus between gun possession and the threat of violence. However, the statute is infirm because it allows one to be subject to federal felony prosecution if the order merely "prohibits the use, attempted use, or threatened use of physical force against [an] intimate partner." 18 U.S.C. § 922(g)(8)(C)(ii). Therefore, by criminalizing protected Second Amendment activity based upon a civil state court order with no particularized findings, the statute is over-broad and in direct violation of an individual's Second Amendment rights...Under this statute, a person can lose his Second Amendment rights not because he has committed some wrong in the past, or because a judge finds he may commit some crime in the future, but merely because he is in a divorce proceeding. Although he may not be a criminal at all, he is stripped of his right to bear arms as much as a convicted felon. Second Amendment rights should not be so easily abridged.

It is absurd that a boilerplate state court divorce order can collaterally and automatically extinguish a law-abiding citizen's Second Amendment rights, particularly when neither the judge issuing the order, nor the parties nor their attorneys are aware of the federal criminal penalties arising from firearm possession after entry of the restraining order. That such a routine civil order has such extensive consequences totally attenuated from divorce proceedings makes the statute unconstitutional. There must be a limit to government regulation on lawful firearm possession. This statute exceeds that limit, and therefore it is unconstitutional.


Because 18 U.S.C. § 922(g)(8) violates the Second and Fifth Amendments to the United States Constitution, the Court GRANTS Emerson's Motion to Dismiss the Indictment. A judgment shall be entered in conformity with this opinion.

Exploring Constitutional Conflicts