46 F.Supp.2d 598 (N.D.Tex. 1999), CR. A. 698CR103, United States v. Emerson

Docket Nº:CR. A. 698CR103
Citation:46 F.Supp.2d 598
Party Name:United States v. Emerson
Case Date:April 07, 1999
Court:United States District Courts, 5th Circuit, Northern District of Texas
 
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Page 598

46 F.Supp.2d 598 (N.D.Tex. 1999)

UNITED STATES of America

v.

Timothy Joe EMERSON.

No. CR. A. 6:98CR103C.

United States District Court, N.D. Texas, San Angelo Division.

April 7, 1999

William B. Mateja, Assistant United States Attorney, Lubbock, TX, for plaintiff.

David Michael Guinn, Assistant Federal Public Defender, Lubbock, TX, for defendant.

AMENDED MEMORANDUM OPINION 1

CUMMINGS, District Judge.

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 Commerce Clause and the Second, Fifth, and Tenth Amendments to the United States Constitution. For the reasons stated below, the Court GRANTS Emerson's Motion to Dismiss.

I.

BACKGROUND

On August 28, 1998, Emerson's wife, Sacha, filed a petition for divorce and application

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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.

II.

ANALYSIS

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....

18 U.S.C. § 922(g)(8).

Emerson argues that 18 U.S.C. § 922(g)(8) is an unconstitutional exercise of congressional power under the Commerce Clause and the Second, Fifth, and Tenth Amendments to the United States Constitution. The Court will address these arguments seriatim.

A.

Commerce Clause

Emerson first argues that 18 U.S.C. § 922(g)(8) is an unconstitutional exercise of congressional power under the Commerce Clause of the United States Constitution. U.S. CONST. art. I, § 8, cl. 3. Pursuant to the Supreme Court's holding in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Emerson argues that the Act is unconstitutional

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because it does not regulate commercial activity.

However, the Fifth Circuit Court of Appeals has examined the validity of 18 U.S.C. § 922(g)(8) under a Commerce Clause challenge and has held that the Act is constitutional. United States v. Pierson, 139 F.3d 501 (5th Cir. 1998). Accordingly, Emerson cannot sustain a Motion to Dismiss under a Commerce Clause challenge.

B.

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.

U.S. CONST. amend. II.

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.

1.

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. David E. Johnson, Note, Taking a Second Look at the Second Amendment and Modern Gun Control Laws, 86 KY.L.J. 197, 198 (1997-98) (citing Andrew D. Herz, Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U.L.REV. 57 (1995)). 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. Id. (citing Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 TENN.L.REV. 461, 464-88 (1995); Robert Dowlut, The Right to Keep and Bear Arms: A Right to Self-Defense Against Criminals and Despots, 8 STAN.L. & POL'Y REV. 25 (1997)).

2.

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. Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 644 (1989). 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,

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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." U.S. CONST. amend. II. 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. David E. Johnson, Note, Taking a Second Look at the Second Amendment and Modern Gun Control Laws, 86 KY.L.J. 197, 200 (1997-98).

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. Id. 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. Id. 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. Id. at 201.

The Supreme Court recently interpreted the text of the Second Amendment and noted that the phrase "the people" in the Second Amendment has the same meaning in both the Preamble to the Constitution and in the First, Fourth, Fifth, and Ninth Amendments. United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S.Ct. 1056...

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