United States v. Emerson
United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002), is a decision by the United States Court of Appeals for the Fifth Circuit holding that the Second Amendment to the United States Constitution guarantees individuals the right to bear arms. The case involved a challenge to the Constitutionality of 18 U.S.C. § 922(g)(8)(C)(ii), a federal statute which prohibited the transportation of firearms or ammunition in interstate commerce by persons subject to a court order that, by its explicit terms, prohibits the use of physical force against an intimate partner or child.[1]
The Fifth Circuit engaged in an extensive analysis of the text and history of the Second Amendment and its attendant caselaw (including many state supreme court decisions), and it ultimately determined that the Second Amendment "protects the right of individuals to privately" keep and bear arms. Nonetheless, the court held that the particular deprivation of the right to bear arms in the case before it did not violate the Constitution, while also acknowledging the federal government's sharp limitations on disarming of individual Americans. The U.S. Supreme Court denied review of the Fifth Circuit's decision.[2]
In 2002, the Ninth Circuit disagreed with Emerson in Silveira v. Lockyer.[3] In 2008, the D.C. Circuit held that the Second Amendment protected an individual right, in Parker v. District of Columbia,[4] which was reviewed by the Supreme Court in District of Columbia v. Heller.[5] In the District of Columbia v. Heller decision the Supreme Court ruled that the Second Amendment "protects an individual right to keep and bear arms".
In McDonald v. Chicago the U.S. Supreme Court incorporated the Second Amendment against the states, ruling that the right to keep and bear arms is an individual right, mooting the questions that had remained in Nordyke.