Recent Development by Brandon M. Diket
Dr. Timothy Joe Emerson was indicted on December 8, 1998, by a grand jury of the United States District Court for the Northern District of Texas for violating the Federal Firearms Act, 18 U.S.C. § 922(g)(8)(C)(ii), which prohibits persons subject to specified court orders from possessing any firearm or ammunition “in and affecting interstate commerce.” At the time of his indictment, Emerson was subject to a court order in the form a temporary injunction issued on September 14, 1998, that enjoined him from “engaging in any of twenty-two enumerated acts.” For example, the injunction enjoined Emerson from threatening his wife with “unlawful action against any person,” causing bodily injury to his wife or child, and threatening bodily injury against his wife or child. This court order fell within the scope of § 922 and as a result, Emerson was prohibited from possessing any firearm that had affected or traveled in interstate commerce. Emerson had lawfully purchased a Beretta pistol on October 10, 1997, in San Angelo, Texas, and the indictment arose from his possession of the pistol while under the temporary restraining order.
The district court granted Emerson's pretrial motion for dismissal of the indictment. The district court dismissed the indictment because it determined that § 922(g)(8) violated Emerson's rights under the Second Amendment and the Due Process Clause of the Fifth Amendment. The determination that § 922 violated Emerson's Second Amendment rights resulted from the court's recognition that Second Amendment rights are individual rights which guarantee citizens the right to possess firearms. Both the government and Emerson appealed the district court's decision; the government challenged both the Fifth and Second Amendment grounds for dismissal. Emerson defended the dismissal and further argued that § 922(g)(8) was an improper exercise of governmental power under the Commerce Clause and that the statute violated the Tenth Amendment. The United States Court of Appeals for the Fifth Circuit held that § 922(g)(8) was not an improper exercise of Commerce Clause power and did not violate the Second, Fifth, or Tenth Amendment; however, the court affirmed the district court's determination that the rights guaranteed by the Second Amendment were individual in nature and therefore protective of a private individual's right to “keep and bear their own firearms that are suitable as individual, personal weapons.” United States v. Emerson, 270 F.3d 203, 264 (5th Cir. 2000), cert. denied, 122 S. Ct. 2362 (2002).
About the Author
Brandon M. Diket.
Citation
77 Tul. L. Rev. 283 (2002)