___________________________
NO. 99-10331
___________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________________ THE UNITED STATES OF AMERICA,Plaintiff-Appellant,
v.
TIMOTHY JOE EMERSON,
Defendant-Appellee.
_________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
SAN ANGELO DIVISION _________________________________ REPLY BRIEF FOR APPELLANT_________________________________
PAUL E. COGGINS
UNITED STATES ATTORNEYWILLIAM B. MATEJA
Assistant U.S. Attorney
State Bar No. 13185350
1205 Texas Avenue, 7th Floor
Lubbock, TX 79401
806/472-7351
806/472-7394 (fax)TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS .......................................................i
TABLE OF AUTHORITIES .................................................ii
ARGUMENT AND AUTHORITIES .....................................1
I. JUDICIAL REJECTION OF THE
DISTRICT COURT'S DECISION IN EMERSON ....................1II. EMERSON'S STATUTORY
CONSTRUCTION ARGUMENT FAILS .................................7
III. EMERSON'S SECOND AMENDMENT
ARGUMENT FAILS .............................................................23IV. EMERSON'S DUE PROCESS
ARGUMENT ALSO FAILS ..................................................35V. EMERSON DID REPRESENT A CREDIBLE
THREAT OF HARM TO HIS WIFE .....................................40VI. THE RECORD DOES NOT SUPPORT EMERSON
CHARACTERIZING THE RESTRAINING ORDER
AS A TEXAS "BOILERPLATE" ORDER ............................42CONCLUSION ...................................................................44
CERTIFICATE OF SERVICE ..........................................45
CERTIFICATE OF COMPLIANCE ................................46
APPENDIX
TABLE OF AUTHORITIES
Page(s)
CASES
Bailey v. United States,
516 U.S. 137 (1995) .............................................................8Bifulco v. United States,
447 U.S. 381 (1980) ...........................................................22Blumenthal v. United States,
88 F.2d 522 (8th Cir. 1937) ................................................38Caminelli v. United States,
242 U.S. 470 (1917) ...........................................................15Chapman v. United States,
500 U.S. 453 (1991) .............................................................7Edwards v. United States,
334 F.2d 360 (1964) ...........................................................38Fraternal Order of Police v. United States,
173 F.3d 898, (D.C. Cir.) cert. denied,
120 S.Ct. 324 (1999) .......................................................6, 31Garcia v. Excel Corp.,
102 F.3d 758 (5th Cir. 1997) ...............................................28Gay Union Corp. v. Wallace,
112 F.2d 192 (D.C. Cir. 1940) .............................................10Gillespie v. City of Indianapolis,
185 F.3d 693 (7th Cir. 1999) cert. denied,
62 U.S.L.W. 3273 (January 18, 2000) ....................................5Hallstrom v. Tillamook County,
493 U.S. 20 (1989) ..............................................................15Harrison v. PPG Industrial Inc.,
446 U.S. 578 (1980) .......................................................21-22Hightower v. Texas Hospital Association,
65 F.3d 443 (5th Cir. 1995) ..................................................11Jordan v. De George,
341 U.S. 223 (1951) ........................................................37-38Kostmayer v. Department of Treasury,
178 F.3d 1291 (5th Cir.) 120 S. Ct. 323 (Oct. 12, 1999) .....1, 3Lambert v. United States,
355 U.S. 225 (1957) .......................................................35-37Lewis v. United States,
445 U.S. at 65 (1980) ...............................................26-27, 33Pa. Department Of Public Works v. Davenport,
495 U.S. 552 (1990) ...........................................................11Presser v. Illinois,
116 U.S. 252 (1886) ...........................................................30Ratzlaf v. United States,
510 U.S. 135 (1994) ...........................................................15Reiter v. Sonotone Corp.,
442 U.S. 330 (1979) ...........................................................10Russello v. United States,
464 U.S. 16 (1983) .........................................................8, 15Smith v. United States,
508 U.S. 223 (1993) ...........................................................22Texaco v. Short,
454 U.S. 516 (1982) ...........................................................36
United States v. Albertini,
472 U.S. 675 (1985) .........................................................7, 8United States v. Ayo-Gonzalez,
536 F.2d 652 (5th Cir. 1976) ...............................................37United States v. Baker,
197 F.3d 211 (6th Cir. 1999) ...........................................4, 34United States v. Bass,
404 U.S. 336 (1971) ...........................................................22United States v. Bostic,
168 F.3d 718 (4th Cir. 1999) ...........................................6, 13United States v. Boyd,
52 F.Supp. 2d 1233 (D. Kan. 1999) ......................................6United States v. Carver,
260 U.S. 490 (1923) .............................................................3United States v. Cruikshank,
92 U.S. 542 (1875) .............................................................30United States v. Emerson,
46 F. Supp. 2d 598 (N.D. Tex 1999) .............................26, 33United States v. Ficke,
58 F.Supp. 2d 1071 (D. Neb. 1999) .....................................6United States v. Giles,
640 F.2d 621 (5th Cir. 1981) ..............................33, 36, 39-40United States v. Henry,
No. 2:98-CR-057 (N.D. Tex. October 14, 1999) ...................4United States v. Henson,
55 F.Supp. 2d 528 (S.D. W. VA 1999) ................................5United States v. Kuehnoel,
187 F.3d 649 (9th Cir. 1999) ...............................................5United States v. Miller,
307 U.S. 174 (1939) .................................................3, 23-28United States v. Moore,
613 F.2d 1029 (D.C. Cir. 1979) .........................................10United States v. Pierson,
139 F.3d 501 (5th Cir. 1998) .............................................32United States v. Ron Pair Enterprises. Inc.,
489 U.S. 235 (1989) .........................................................16United States v. Smith,
171 F.3d 1999 (8th Cir. 1999) .............................................6United States v. Spruill,
61 F.Supp. 2d 587 (W.D. Ohio 1999) ...........................4, 34United States v. Turkette,
452 U.S. 576 (1981) ..........................................................8United States v. Visnich,
65 F.Supp. 2d 669 (N.D. Ohio 1999) .................................5United States v. Wilson,
159 F.3d 280 (7th Cir. 1998) ...........................................37Wright v. United States,
302 U.S. 583 (1938) .......................................................29
STATUTES, RULES, LAWS
5th Cir. R. 47.5.4. .......................................3
18 U.S.C. § 922(d)(8) ................................21
18 U.S.C. § 922(g)(8) .........................Passim
18 U.S.C. § 925(c) ......................................2
CONGRESSIONAL MATERIALS
139 Cong.Rec. S15340 (daily ed., Nov. 8, 1993) ............................17
139 Cong.Rec. S15638 (daily ed., Nov. 10, 1993) ..........................18
139 Cong.Rec. S17095, S17174 (daily ed., Nov. 24, 1993) .............18
140 Cong.Rec. S7393-01, S7394 (daily ed., June 22, 1994) ............19
Conf. Rep. No. 103-711, 103 Cong. 2d Sess. 391 (1994) ...............21
Statement to Conferees at Press Conference,
Government Press Release, 1994 WL 141280478 (June 28, 1994) ...19
OTHER
Michael A. Bellesiles,Suicide Pact: New Readings of the
Second Amendment, 16 Const. Commentary 247 (1999) ........................24Black's Law Dictionary, 1181 (5th ed. 1979) ....................................14, 37
Carl T. Bogus, The Hidden History of the Second Amendment,
31 U.C. Davis L.Rev. 309 (1998) ...........................................................24Cooley's Blackstone, Vol. I. p. 54 (4th ed.) ............................................37
Saul Cornell, Commonplace or Anachronism,
16 Const. Commentary 221 (1999) .........................................................24Dennis Henigan, Arms, Anarchy and the Second Amendment,
26 Val. U.L. Rev. 107 (1991) .................................................................24Don Higginbotham, The Second Amendment in Historical Context,
16 Const. Commentary 263 (1999) .........................................................24Nelson Lund, The Ends of Second Amendment Jurisprudence:
Firearms Disabilities and Domestic Violence Restraining Orders,
4 Texas Rev. L. & Pol. 157 (Fall 1999) .........................................27, 41-42Antonin Scalia, A Matter of Interpretation:
Federal Courts and the Law 136 n.13 (1997) ..........................................31Laurence H. Tribe, 1 American Constitutional Law 894 (3d ed. 2000) .....28
Garry Wills, A Necessary Evil:
A History of American Distrust of Government (1999) ......................13, 24ARGUMENT AND AUTHORITIES
I.
JUDICIAL REJECTION OF THE DISTRICT COURT'S
DECISION IN EMERSON
Since the District Court shocked the legal community by tossing aside long-standing Second Amendment precedent to become the first court in American jurisprudence to determine the Amendment secures anindividual right to bear arms, this Court has flatly rejected a similar Second Amendment challenge and all five federal courts charged with reviewing Section 922(g)(8)'s constitutionality have rejected Emerson and/or similar Second and Fifth Amendment Due Process challenges, including district courts in Amarillo and Midland-Odessa.
1. The Fifth Circuit Rejects The Notion That The Second Amendment Secures An Individual Right To Bear Arms
InKostmayer v. Department of Treasury, 178 F.3d 1291 (5th Cir.) cert. denied, 120 S.Ct. 323 (October 12, 1999) (unpublished), this Court squarely confronted the issue of whether "restrictions by federal statute or regulation on a citizen's possession of firearms [are] constitutional under the Second Amendment?" In a decision rendered more than a week after the District Court stunned the legal community with its Memorandum Opinion, (1) this Court rejected the contention that the Second Amendment secures an individual right to bear arms. A copy of this Court's opinion, the lower court's opinion (which was adopted by reference in this Court's opinion) and pertinent portions of the appellant's opening brief in Kostmayer are attached as Appendix 1, 2 and 3 respectively.
In Kostmayer, plaintiffs filed an action seeking to require ATF to process their applications pursuant to 18 U.S.C. § 925(c), which vests authority in the Secretary of the Treasury to grant them relief from the disability of being felons in possession. (Appendix 3 at p. 4). Chief among plaintiffs' arguments was the contention the Second Amendment secured an individual right to bear arms and that the statutory lifetime ban impermissibly infringed on their Second Amendment rights. (Appendix 3 at pp. 3, 13-25).
In a short, unpublished decision, this Court acknowledged the appeal concerned the "constitutionality of 18 U.S.C. § 922(g)(1) and § 925(c)." (Appendix 1 at p. 2). In rejecting the Second Amendment challenge, this Court relied on the lower court's prior decision and rationale, which decision simply stated there was no authority to support such a challenge. (Appendix 1 at p. 2; Appendix 2 at p. 2).
Though Kostmayer was unpublished, "an unpublished opinion may . . . be persuasive." 5th Cir. R. 47.5.4. Further, the Supreme Court recently denied plaintiffs' petition for writ of certiorari on the issue of "[w]hether U.S. Const. amend. II creates a personal right in each citizen that shall not be infringed." Kostmayer v. Department of Treasury, 120 S.Ct. 323 (October, 12, 1999). (Appendix 4 at p. (i)). The petition for writ of certiorari squarely brought not only the Emerson decision to the attention of the Supreme Court, by devoting the better part of a page to its coverage, but also plaintiffs' critique of United States v. Miller. (Appendix 4 at 9-15). Pertinent excerpts from the petition are attached as Appendix 4.
As an aside, the Supreme Court's denial of certiorari in Kostmayer adds yet another case to the long list of cases in which the Supreme Court could have revisited Miller. (2) Though the denial of certiorari technically imports no expression of opinion upon the merits of the case, United States v. Carver, 260 U.S. 490 (1923), so many denials, especially when the scholarly literature contains a number of articles advocating the "Standard Model," and especially in light of Justice Thomas' concurring remarks in Printz, (3) cannot be dismissed as insignificant. As a practical matter, these numerous denials appear to express the Court's rejection of a claimed individual right to bear arms.
2. Federal Courts Have Uniformly Rejected Emerson And Its Rationale In Challenges To Section 922(g)(8)'s Constitutionality
Set forth below is an outline of the five cases decided postEmerson in which federal courts have uniformly rejected Emerson and/or similar challenges to Section 922(g)(8)'s constitutionality:
(1) United States v. Spruill, 61 F. Supp. 2d 587 (W.D. Tex. 1999): Judge Ferguson of the Midland-Odessa Division rejected a challenge to Section 922(g)(8)'s constitutionality noting renewed debate on both sides and the Emerson decision. The court stated that, without further guidance from the Supreme Court, it would follow the majority in holding the Second Amendment did not prohibit the imposition of restrictions on private gun ownership.
(2) United States v. Henry, No. 2:98-CR-057 (N.D. Tex. October 14, 1999) (unpublished): Judge Robinson of the Amarillo Division rejected a similar constitutional attack on Section 922(g)(8) based on Second and Fifth Amendment grounds. A copy of this unpublished decision, as well as the separate Report and Recommendation of Magistrate Judge Averitte (in which he independently rejects Emerson) is attached as Appendix 5.
(3) United States v. Baker, 197 F.3d 211 (6th Cir. 1999): In rejecting a challenge to Section 922(g)(8) under the Due Process Clause, the Sixth Circuit determined the defendant had no fundamental right to possess a firearm because the Second Amendment did not guarantee a personal right to bear arms. As such, the court applied a rational basis review in concluding the statute rationally related to the government's legitimate interest in curtailing the incidence of domestic violence.
(4) United States v. Henson, 55 F.Supp. 2d 528 (S.D. W. Va. 1999): Where the defendant merely attached a copy of the Emerson decision in support of his motion to dismiss, the court flatly rejected Emerson in holding that (i) "the Second Amendment only confers a collective right of keeping and bearing arms which must bear a 'reasonable relationship to the preservation or efficiency of a well-regulated militia'" and (ii) Section 922(g)(8) "does not violate the notice and fair warning principles embodied in the Fifth Amendment because of the 'fundamental principle' that ignorance of the law is no excuse.'"
(5) United States v. Visnich, 65 F.Supp. 2d 669 (N.D. Ohio 1999): Court determined Section 922(g)(8) did not violate defendant's Second Amendment rights because he had no individual right to possess a firearm. The court also rejected a due process challenge.
3. Post-Emerson Courts Have Rejected Second and Fifth Amendment Challenges To Other Firearms Statutes
PostEmerson, all federal courts except one have rejected Second and Fifth Amendment challenges to similar firearms statutes. See, e.g., United States v. Kuehnoel, 187 F.3d 649 (9th Cir. 1999) (rejecting a Second Amendment challenge to Section 922(o) - illegal possession of a machine gun - on the ground that defendant lacked standing "either as an individual or as a member of private militia," to mount such a challenge); Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999) cert. denied, 62 U.S.L.W. 3273 (January 18, 2000) (rejecting a Second Amendment challenge to Section 922(g)(9) - illegal possession of a firearm by a person convicted of a misdemeanor crime of domestic violence - because "[w]hatever questions remain unanswered, Miller and its progeny do confirm that the Second Amendment establishes no right to possess a firearm apart from the role possession of the gun might play in maintaining a state militia"); Fraternal Order of Police v. United States, 173 F.3d 898 (D.C. Cir.), cert. denied, 120 S.Ct. 324 (1999) (rejecting Second Amendment challenge to Section 922(g)(9) because the statute did not hinder the militia service of the persons bringing suit); United States v. Boyd, 52 F.Supp. 2d 1233 (D. Kan. 1999) (rejecting a Second Amendment challenge to Section 922(g)(9) by noting it could not justify departing from binding precedent); United States v. Smith, 171 F.3d 1999 (8th Cir. 1999) (in rejecting an equal protection challenge to Section 922(g)(9), the court rejected the same claim Emerson brings herein (i.e., that strict scrutiny analysis applies in reviewing the constitutional propriety of the statute) opting instead for a rational basis analysis); but see, United States v. Ficke, 58 F.Supp. 2d 1071 (D. Neb. 1999) (striking down Section 922(g)(8) as unconstitutional under the Due Process Clause). (4)
II.
EMERSON'S STATUTORY CONSTRUCTION
ARGUMENT FAILS
Emerson argues this Court should avoid reviewing the so-called "knotty constitutional questions" by construing Section 922(g)(8) to require "a substantial showing, and a judicial finding, that the person subject to the [restraining] order represents a credible threat of violence to his 'intimate partner' or child." (Emerson Br. at 8). He maintains that (i) such a construction of Section 922(g)(8) is necessary to avoid redundancy among its various elements, (ii) the statute contemplates issuance of an order granting "injunctive relief," a remedy that traditionally requires such particularized findings, (iii) the construction is mandated by its legislative history, and (iv) in any event, the rule of lenity requires the construction. Each of these arguments lacks merit.
Although "[s]tatutes should be construed to avoid constitutional questions," United States v. Albertini, 472 U.S. 675, 680 (1985), "this interpretative canon is not a license for the judiciary to rewrite language enacted by the legislature." Id; see also, Chapman v. United States, 500 U.S. 453, 464 (1991). Such a judicial rewriting of Section 922(g)(8) is precisely what Emerson proposes because he recognizes the shortcomings of the District Court's wholly unsupportable Second and Fifth Amendment analysis.
A. The Plain Language Of Section 922(g)(8) Fails To Support Emerson's Statutory Construction Argument
It is axiomatic that, "[i]n determining the scope of a statute, we look first to its language. If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive."Russello v. United States, 464 U.S. 16, 20 (1983) (quoting, United States v. Turkette, 452 U.S. 576, 580 (1981)); see, e.g., Bailey v. United States, 516 U.S. 137, 144-45 (1995) ("We start as we must with the language of the statute"); Albertini, 472 U.S. at 680 ("Proper respect for [legislative] powers implies that [s]tatutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of the language accurately expresses the legislative purpose.").
Section 922(g)(8) is not even arguably ambiguous. It prohibits the possession or receipt of any firearm by a 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; or
(9) [provision prohibiting firearm possession by those convicted of a misdemeanor crime of domestic violence]
(emphasis added). For ease of review, the entirety of Section 922(g), with all its subsections, is reprinted in Appendix 6.
Nothing in the language of Subsection (C) supports Emerson's construction that a judicial finding of a threat of violence or bodily injury is a sine qua non for a federal firearms disability; instead its disjunctive structure makes it plain that two types of restraining orders can constitute the basis for such a disability: (i) those that include a finding that the individual represents a credible threat and (ii) those that explicitly prohibit the use, attempted use or threatened use of force.
As courts have repeatedly recognized, "[n]ormally . . . 'or' [which separates (C)(i) from (C)(ii)] is to be accepted for its disjunctive connotation, and not as a word interchangeable with 'and.'" United States v. Moore, 613 F.2d 1029, 1040 (D.C. Cir. 1979) (collecting cases); see Gay Union Corp. v. Wallace, 112 F.2d 192, 196 (D.C. Cir. 1940) ("or" is normally a disjunctive "introductive of an alternative standard"); see also, Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) ("[c]anons of construction ordinarily suggest that terms connected by the disjunctive be given separate meanings.").
Although in some instances, "a strict grammatical construction [of the term 'or'] will frustrate legislative intent . . . unless 'or' is read as 'and,'" see Moore, 613 F.2d at 1040, such is plainly not the case here. In the context of Section 922(g)(8), Congress demonstrated its ability to substitute the conjunctive "and" when it deemed it appropriate to do so, requiring both an order that restrained the subject from "harassing, stalking, or threatening an intimate partner or child" and a provision in the order that included a finding of dangerousness or an explicit prohibition against the use of force. Had it intended to make the provisions of Subsection (C) conjunctive as well - so as to require a finding of dangerousness in every case - it plainly knew how to say so. See Hightower v. Texas Hosp. Ass'n., 65 F.3d 443, 450 (5th Cir. 1995) (Congressional use of both conjunctive and disjunctive requirements in statute leads to inference that it intended to afford them their literal meanings). Finally, Congress's employment of the term "or" between sections (g)(8) and (g)(9) of the same statute plainly demonstrates it intended the term to be used disjunctively.
Emerson argues, nonetheless, that reading Subsection (C)(ii) to encompass restraining orders prohibiting the use of physical force without also requiring a judicial finding, has the practical effect of rendering Subsection (8)(B) redundant with Subsection (8)(C). (Emerson Br. at 17-18). While the "cases express a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment," Pa. Dep't Of Public Works v. Davenport, 495 U.S. 552, 562 (1990), engrafting a requirement of a judicial finding upon Subsection (C)(ii) is not necessary to save it from redundancy with Subsection (B). In the first place, Subsections (B) and (C) serve wholly different functions. Subsection (B) broadly describes the classes and types of restraining orders to which the Statute applies, namely, orders that "restrain" a person from harassing, stalking, or threatening an intimate partner. This broad language is necessary to capture the many shapes, fashions and forms these orders will assume, given the multitude of state and local jurisdictions empowered to issue them and given the differing factual circumstances which give rise to them.
In contrast, Subsection (C) serves the distinct function of narrowing the subset of persons subject to the various classes of restraining orders proscribed in Subsection (B), to those who also cannot be trusted to receive or possess firearms. That subset includes persons who fall into one of two categories: (i) those with respect to whom a court has made a finding of dangerousness and (ii) those who, by the terms of the restraining order, are explicitly prohibited from using, attempting to use, or threatening to use physical force against an intimate partner or child.
Aside from this dichotomy of function, Subsections (B) and (C)(ii) are plainly not coterminous in scope. Subsection (B) includes orders prohibiting harassing and stalking alone, whereas Subsection (C)(ii) clearly does not. Further, it is not only possible, but likely that some anti-harassment or anti-stalking order which qualify under Subsection (B), might not qualify under Section (C)(ii) because they did not prohibit a person from using, attempting to use or threatening physical force against an intimate partner or child - in which case, Section 922(g)(8) would not apply (assuming there was also no judicial finding of dangerousness). In cases where no judicial finding has been made pursuant to (C)(i), subsection (C)(ii) imposes the additional requirement that any order issued under Subsection (B) must include an explicit prohibition against actions such as the "use, attempted use, or threatened use of physical force . . . that would reasonably be expected to cause bodily injury."
Congress' remarkable wisdom in creating Subsection C(ii) as a compliment to Subsection C(i), is manifest when we recognize that, because of Subsection C(ii), persons clearly shown to be credible threats, like Emerson (5) and the defendant in United States v. Bostic, 168 F.3d 718 (4th Cir. 1999), were able to be prosecuted notwithstanding their respective state domestic courts' failure to find they represented credible threats to their intimate partners - failures that could have resulted from any one of a number of good or bad reasons.
B. Section 922(g)(8) Does Not Require The Issuance of an "Injunction" As A Prerequisite To A Firearms Disability
Nor is there merit to Emerson's argument that the term "restrains" as employed in Subsection (B), as well as the notice and hearing requirements of Subsection (A), implicitly contemplates proof and a judicial finding of dangerousness. (Emerson Br. at 19-22). Emerson maintains the term "restrain" has its roots in the law of equity and connotes an "injunction," which "have traditionally issued only upon a substantial showing, and a judicial finding of the likelihood of the threatened harm." (Emerson Br. at 20).
The term "restrain," is far broader in reach than the technical connotation ascribed to it by Emerson. While the term can mean "to enjoin," it is more commonly defined as simply meaning to "prohibit from action; to put compulsion upon; to hold back from acting, proceeding or advancing, either by physical or moral force, or by interposing [an] obstacle." Black's Law Dictionary, 1181 (5th ed. 1979). We are not aware of any indication - and Emerson has cited none - that when Congress employed the term "restrains" in Subsection (B) (the subsection defining the class of permissible restraining orders) it intended the term to mean anything more than to "prohibit from action," or to import into the subsection the procedural requirements necessary for granting injunctive relief. And, with respect to the hearing requirement of Subsection (A), the provision neither delineates the nature or scope of such a hearing nor the findings, if any, that must be made during such a proceeding.
C. Properly Considered, The Legislative History of Section 922(g)(8) Is Fully Consistent With Its Plain Language
Emerson's statutory construction argument rests principally on his strained, if not misleading, interpretation of the legislative history of Section 922(g)(8). His legislative history argument proceeds from the mistaken premise that, even if the statutory language is plain, legislative history may be employed as a tool for creating uncertainty. This inverted approach is clearly contrary to the Supreme Court's teaching that "[i]n determining the scope of a statute, we look first to its language. If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive."Russello v. United States, 464 U.S. 16, 20 (1983) (citations omitted); see, e.g., Hallstrom v. Tillamook County, 493 U.S. 20, 28 (1989). "[W]here, as here, the statute's language is plain, 'the sole function of the courts is to enforce it according to its terms.'" United States v. Ron Pair Enterprises. Inc., 489 U.S. 235, 241 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)); see also, Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994) ("[W]e do not resort to legislative history to cloud a statutory text that is clear.").
Aside from the plain applicability of this canon of construction, "[n]othing in the legislative history of [Section 922(g)(8)] militates against honoring [its] plain language . . . Nor is this one of the rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its Drafters." Hallstrom, 493 U.S. at 28-29 (citations and internal quotations omitted).
As we understand it, Emerson's contrary argument is based upon his contention that, as submitted to the Conference Committee, all three versions (two Senate and one House ) of the legislation that was to become Section 922(g)(8) contained a judicial finding of dangerousness requirement. When the Conference Committee issued its report dispensing with such a requirement, as evidenced by what was to become Subsection (C)(ii), it did not expressly articulate its reasons for doing so. From this silence, Emerson concludes the omission was the unintended result of "poor draftsmanship" during last minute efforts "to complete work on a massive crime bill" and that, consequently, this Court should rectify the "inadvertent omission" by construing Subsection (C)(ii) to implicitly impose a judicial finding requirement. (Emerson Br. at 26-27). This argument both misrepresents the legislative history of this Subsection and misapprehends the significance of the Conference Committee's actions.
Section 922(g)(8) was enacted as Section 110401 of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (1994) (hereafter the "1994 Crime Bill"). As Emerson explains, three proposals regarding that provision were submitted to a Conference Committee. The House version of the legislation, initially introduced by Representative Schroeder, is set forth in Emerson's Brief at pages 22-23. One of the two Senate versions, an amendment introduced by Senators Hatch and Chaffee, is set forth on page 25 of Emerson's Brief.
More germane to this analysis, however, is a similar amendment submitted by Senator Wellstone on November 8, 1993 (amendment No. 1123) which would have imposed a federal firearms disability upon whoever:
(A) has been convicted in any court of the United States of an offense that -
(i) has as an element the use, attempted use, or threatened use of physical force against a person who is a spouse, former spouse, domestic partner, child, or former child of the person; or
(ii) by its nature, involves a substantial risk that physical force against a person who is a spouse, former spouse, domestic partner, child, or former child of the person may be used in the course of committing the offense; or
(B) is required, pursuant to an order issued by a court of the United States in a case involving the use, attempted use, of threatened use of physical force against a person described in subparagraph (A), to maintain a minimum distance from that person.
139 Cong. Rec. S15340 (daily ed., Nov. 8, 1993).
Two days later, however, Senator Wellstone offered a modified version of his amendment (amendment 1179). This modification, which Emerson failed to mention in his brief, substantially revised subsection (B) of the amendment to provide:
(B) is required, pursuant to an order issued by any court in a case involving a person described in subparagraph (A), to refrain from any contact with or to maintain a minimum distance from that person, or to refrain from abuse, harassment, or stalking of that person.
139 Cong. Rec. S15638 (daily ed., Nov. 10, 1993). (6) This version of Subsection (B) to the Wellstone amendment, and not that which he introduced two days earlier, appears in the Senate bill ultimately submitted to the Conference Committee. See 139 Cong. Rec. S17095, S17174 (daily ed., Nov. 24, 1993). (7) The modified version of the Wellstone amendment is attached hereto as Appendix 7.
It is apparent, from subsequent statements made by Senator Wellstone criticizing the House version of the domestic firearms prevention provision, that his modification of Subsection (B), which eliminated the earlier language "in a case involving the use, attempted use, or threatened use of physical force against a person described in subparagraph (A)," was an intentional effort to expand the scope of the legislation. In a statement to the House-Senate Conferees, he explained that:
The modifications made to the Domestic Violence Firearms Prevention provision in the House bill narrowed it so that very few perpetrators would be covered. It also completely eliminates any mention of abuse toward children. It would only restrict the possession of a gun to people who have a restraining order issued against them because of harassing, stalking, or threatening of an intimate partner. An intimate partner is defined as a spouse, former spouse, housemate or the parent of one's child. It also requires that the restraining order be issued after a hearing at which that person has received actual notice, AND that the person had an opportunity to participate in the hearing, AND the court issued a finding that such person represents a credible threat to the physical safety of such intimate partner.
Statement to Conferees at Press Conference, Government Press Release, 1994 WL 141280478 (June 28, 1994) (italics added). Of course, Senator Wellstone's amendment eliminated the requirement - cited in his express criticism - that a finding of dangerousness was necessary in all cases.See also, 140 Cong. Rec. S7393-01, S7394 (June 22, 1994) (statement by Sen. Wellstone that his amendment "would prohibit anyone who has a restraining order issued against them [from] owning or possessing a gun").
As Emerson and his amicus, the State of Alabama, explain, when the House and Senate versions of the domestic violence firearm provision arrived at the Conference Committee in the summer of 1994, the Committee was confronted with three pertinent provisions: (i) the House version, initially submitted by Rep. Schroeder, (ii) the Senate version containing both the Chaffee/Hatch amendment (§ 301), and (iii) the Wellstone amendment (§§ 4201-03). Both Emerson and the State of Alabama are absolutely wrong in asserting that "none of these three provisions purported to dispense with the need for a judicial finding of actual or threatened domestic violence." (Emerson Br. at 26; Alabama Amicus Br. at 22). As we have explained, before its final inclusion in the Senate bill and subsequent submission to the Conference Committee, the Wellstone amendment was modified, eliminating the language upon which Emerson relies; indeed, Senator Wellstone subsequently criticized the House version of the legislation, in part, because it contained such a limiting provision.
The presence of the modified Wellstone amendment, coupled with an explanation by its proponent before the Conference Committee, is fatal to Emerson's contention that the Committee was not presented with any domestic violence firearms provision in the House and Senate versions of the 1994 Crime Bill that omitted a requirement for a judicial finding of dangerousness. Thus, it is not remarkable in the least that the Conference Committee's final product, which was ultimately enacted as Section 922(g)(8), contained the alternative provisions memorialized by Subsections (C)(i) and (C)(ii) - one apparently based upon the Schroeder and Hatch-Chaffee amendments and the other upon the Wellstone amendment (which dispensed with the judicial finding requirement). There is, therefore, no basis for Emerson's brash speculation that the omission was due to "poor draftsmanship" or an inadvertent omission. (8)
Finally, Emerson takes the Conference Committee to task for failing to explain its action in adding to the House version of the domestic violence disability provision (the Schroeder amendment) a new subsection that would ostensibly impose a firearms disability without findings of dangerousness. (Emerson Br. at 26). In the first place, the Conference Committee Report was not silent with respect to its action upon that legislation; it expressly noted that it adopted the House version of the legislation "with modifications." Conf. Rep. No. 103-711, 103 Cong. 2d Sess. 391 (1994). Thus, it indicated it knew full well that the language of the version as ultimately adopted differed from the Schroeder amendment which required, in all cases, a finding of future dangerousness.
Beyond this, however, the failure of Congress to explain its rationale for adopting a formulation of a statute that is apparent from the plain meaning of its terms cannot be relied upon to alter that meaning. As the Supreme Court explained in Harrison v. PPG Indus. Inc., 446 U.S. 578, 592 (1980):
[I]t would be a strange canon of statutory construction that would require Congress to state in committee reports or elsewhere in its deliberations that which is obvious on the face of a statute. In ascertaining the meaning of a statute, a court cannot, in the manner of Sherlock Holmes, pursue the theory of the dog that did not bark.
Thus, it does not advance Emerson's strained construction of Section 922(g)(8) in the least to argue, as in Harrison, 446 U.S. at 592, that "Congress . . . expanded radically [the breadth of the House version of Section 922(g)(8)] without some [explicit] consideration and discussion of the matter."
D. The Rule of Lenity Does Not Apply
In a last gasp effort to sustain his artificial construction of Section 922(g)(8), Emerson invokes the rule of lenity. (Emerson Br. at 30). "The mere possibility of articulating a narrower construction [of a statute] however, does not by itself make the rule of lenity applicable. Instead, that venerable rule is reserved for cases where, '[a]fter seiz[ing] every thing from which aid can be derived,' the Court is 'left with an ambiguous statute.'"Smith v. United States, 508 U.S. 223, 239 (1993), (quoting United States v. Bass, 404 U.S. 336, 347 (1971)). See, e.g., Bifulco v. United States, 447 U.S. 381, 387 (1980) (the touchstone of the rule of lenity is "statutory ambiguity").
As explained above, there is nothing ambiguous about the language of Section 922(g)(8), particularly its selection of the disjunctive "or" in separating Subsections (C)(i) (which requires a finding of dangerousness) from (C)(ii) (which does not). And, as also explained above, that construction is perfectly consistent with the various formulations of the statute from which the Conference Committee developed an acceptable compromise.
III.
EMERSON'S SECOND AMENDMENT
ARGUMENT FAILS
A. The Second Amendment Does Not Confer A Right To Bear Arms Unrelated To Militia Service
Emerson's challenge to the longstanding interpretation of the Second Amendment wholly fails to counter the weight of Supreme Court precedent and historical facts. He fails to provide any coherent argument as to how the Second Amendment, with its introductory militia clause, grants a right to bear arms completely untethered from militia service. He completely ignores the historical context against which the Amendment was drafted, which shows not only that the Amendment was aimed at protecting the states against the federal government, but also that it grew out of a long history of gun control. And, most important, he fails to come to grips withUnited States v. Miller, 307 U.S. 174 (1939), the case now recognized by every circuit as providing the definitive interpretation of the Second Amendment. (9)
To take the most basic point first: Contrary to Emerson's contention that Miller is "highly ambiguous," (Emerson Br. at 36), the Supreme Court provided clear and unquestionable guidance as to the meaning of the Second Amendment. Indeed, the Court stated point-blank it was:
[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
Miller, 307 U.S. at 178 (emphasis added). Given this binding precedent, it would be highly irregular for this Court to put forth an interpretation of the Second Amendment that did not tie the right to bear arms to the "continuation and . . . effectiveness of [militia] forces."
Emerson attempts to divert this Court's attention from Miller's clear directive by contending that, at most, Miller approves "restrictions only on weapons that have the special characteristics shared by those identified in the National Firearms Act of 1934 - i.e., slight value to law-abiding citizens and high value to criminals." (Emerson Br. at 37) (internal quotation marks omitted). Once again, however, this interpretation ignores Miller's plain language. The issue before the Miller court, as the Court itself stated, was whether the "possession or use" of the weapon "ha[d] some reasonable relationship to the preservation or efficiency of a well regulated militia," not merely whether the weapon was military-related. Miller, 307 U.S. at 178 (italics added); id. (weapon's use must "contribute to the common defense," rather than the defense of individuals). In the Miller court's view, then, a Second Amendment analysis should focus not simply on the nature of the challenged weapon but, more precisely, on whether the defendant's possession or use of that weapon was related to militia service - an analysis completely consonant with the view that the Second Amendment was drafted "[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces."
Such an interpretation also avoids the untenable conclusion that flows from Emerson's proposed focus on the nature of the weapon. If Emerson is right, possession of any weapon that could be considered "ordinary military equipment" would be constitutionally protected, including rocket launchers, assault weapons, and other dangerous weapons unsuited for civilian use. Indeed, even the District Court recognized that focusing on the nature of the weapon alone would support:
. . . 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 [a weapon-centered interpretation of] Miller, arguments about the constitutional legitimacy of a prohibition by Congress 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.
United States v. Emerson, 46 F. Supp. 2d 595, 608 (N.D. Tex. 1999). The absurd result of a weapon-focused interpretation of the Second Amendment is a clear indication that such an interpretation is misguided. Focusing the analysis on whether the "possession or use" of the weapon is related to militia participation, as the Supreme Court did in Miller, ensures that the intent of the Founders in drafting the Amendment is satisfied: that the federal government not be allowed to disable the militias by using its Article I power to deprive their members of weapons.
Emerson's attempt to characterize Miller as unworthy of deference, (see Emerson Br. at 37), has already been rejected by the Supreme Court itself. In Lewis v. United States, 445 U.S. 55 (1980), the Court cited Miller in upholding a federal law prohibiting a convicted felon from possessing a firearm, adopting a rational basis review because the legislative scheme was "neither based upon constitutionally suspect criteria, nor [does it] trench upon any constitutionally protected liberties." Id. at 65 n.8 (citing Miller) (emphasis added). Emerson rejects the precedential value of Lewis on the purported ground that it holds only that "the possession of firearms by previously convicted felons is not protected by the Second Amendment" and that "such a 'holding' has nothing to say about the Second Amendment as a general matter." (Emerson Br. at 35). But Miller did not involve firearm possession by previously convicted felons, so the Court's citation to Miller in Lewis would have offered no support to the Court if this were the intended scope of the Court's statement in Lewis. Rather, as is abundantly clear from the context, the Lewis court was making the simple point that the necessary militia component to the Second Amendment meant that there was no Second Amendment right for the defendant in that case to assert, felon or not.
In short, even if this Court found Professor Lund's conclusions, which underpin both Emerson's brief (10) and that of its amicus, National Rifle Association, (11) worthy of any consideration, such consideration would be purely academic. This Court is bound by Miller, which indisputably ties the rights referred to in the Second Amendment to militia participation and most certainly does not confer an individual right to gun possession for whatever purpose desired. See Laurence H. Tribe, 1 American Constitutional Law 894 (3d ed. 2000). (12) The decision of whether to revise the accepted interpretation of the Second Amendment - unsound though such a decision would be - is the Supreme Court's, not this Court's, to make. See, e.g., Garcia v. Excel Corp., 102 F.3d 758, 760 n.7 (5th Cir. 1997) ("We are bound to our circuit precedents and would not presume to ignore Supreme Court precedents or teachings.").
Of course, completely apart from the mandatory authority of Miller, there should be no doubt that the Second Amendment does not grant a right to bear arms apart from militia service. The Second Amendment, alone among the Bill of Rights, contains an introductory clause that defines and contextualizes the right discussed in the remainder of the Amendment: The right "to keep and bear Arms" is protected for the specific purpose of ensuring the existence of "[a] well-regulated Militia," which is "necessary to the security of a free State." Emerson argues, however, that the introductory militia clause gives "merely one reason" among many for the Amendment's existence, and thus should not be given any interpretive significance. (Emerson Br. at 41). (13) This argument is in direct contravention to the fundamental principle of constitutional interpretation that "every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added." Wright v. United States, 302 U.S. 583, 588 (1938) (internal quotation marks omitted). There is therefore no distinction, as Emerson attempts to make, between the "justification clause" and the "operative clause" of the Second Amendment (see Emerson Br. at 40) - both clauses, including the militia clause, are parts of the Constitution and must be given equal weight and appropriate meaning.
Moreover, as Emerson acknowledges, United States v. Cruikshank, 92 U.S. 542 (1875), and Presser v. Illinois, 116 U.S. 252, 265 (1886), hold that the Second Amendment restricts only the federal government and not the states. (Emerson Br. at 34 n.28). Yet Emerson fails to draw the natural conclusion from these unchallenged holdings: If the right to bear arms were truly unlinked from state militia participation - in other words, if one could "bear arms" for any purpose - then the Amendment's restrictions would be binding on the states and the federal government, just as the First Amendment's guarantee of free speech binds the states and the federal government. But Cruikshank and Presser make clear that the Second Amendment is only enforceable against the federal government, and the Supreme Court has not since held otherwise. See, e.g., Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 136 n.13 (1997) ("Of course, properly understood, [the Second Amendment] is no limitation upon arms control by the states."). The only logical reason for declining to extend the Second Amendment to restrict state regulation is that the Amendment was enacted specifically to benefit the states, by ensuring that the federal government would not thwart their ability to organize and regulate local militia. Thus, contrary to Emerson's assertion that Cruikshank and Presser "have nothing to say about the issue presented here," (Emerson Br. at 34 n.28), these cases provide additional support for the contention that the right to bear arms is inextricably connected to participation in an organized state militia.
Finally, Emerson does not deal at all with the historical context against which the Second Amendment was drafted, a context that plainly shows the tradition in place at the time was one of firearm regulation, not of broad and unfettered possession. ( See, e.g., Center to Prevent Handgun Violence Amicus Br. at 22-25; Ad Hoc Group of Law Professors and Historians Amicus Br. (supporting the Government) at 22-23).
In sum, Emerson misses the point. Because the states, as government bodies, are incapable of "bearing arms," the right addressed by the Second Amendment must be asserted, in representative fashion, by individuals. But as the Supreme Court and every federal appellate court (14) have recognized, this does not mean that individuals have a Second Amendment right to possess weapons for any purpose they choose. Rather, an individual has the right to bear arms only insofar as the right advances the state's interest in a "well-regulated Militia." Emerson's possession of a weapon clearly did not advance any such state interest; he therefore can claim no infringement of his Second Amendment rights.
B. Rational Basis, Not Strict Scrutiny, Is the Appropriate Level of Review
Although Emerson fails to establish that firearm possession is a fundamental constitutional right, he contends "strict scrutiny" is the appropriate level of review in this case. In doing so, he argues first that "[t]he federal government's sole justification for intruding into this traditionally state-enforced enclave of criminal law is its power to regulate interstate commerce under the Commerce Clause." (Emerson Br. at 43). Clearly, however, Congress's power to regulate interstate commerce is itssource of power to enact Section 922(g)(8), not its justification for doing so. A federal law does not pass or fail strict scrutiny simply because the states are "perfectly capable of passing laws against, and prosecuting," (Emerson Br. at 44), the evil at issue. Second, Emerson argues that his identified "justification" must fail because "there is generally only the most tenuous link to interstate commerce in such cases." Id. This Commerce Clause challenge, transparently clothed as a strict scrutiny challenge and Emerson's only argument for why Congress had no compelling interest in enacting Section 922(g)(8), must fail in light of this Court's decision in United States v. Pierson, 139 F.3d 501 (5th Cir. 1998), which specifically rejected such a Commerce Clause challenge to Section 922(g)(8).
Emerson is unable to draw on any relevant case law to support his argument for strict scrutiny because case law makes it clear strict scrutiny is simply inappropriate. As noted in the Government's opening brief at page 31, it is widely accepted that firearm regulations are permissible if there is "some rational basis for the statutory distinctions made." Lewis, 445 U.S. at 65 (internal quotation marks omitted) (emphasis added); see also, United States v. Giles, 640 F.2d 621, 625 (5th Cir., Unit A, 1981). Even the District Court instinctively recognized the right to gun possession is not a fundamental right. The District Court held that Section 922(g)(8) could have survived its review if "a reasonable nexus between gun possession and the threat of violence" had been demonstrated. Emerson, 46 F. Supp. 2d at 611 (N.D. Tex. 1999). Of course, the requirement that a "reasonable nexus" between the challenged legislation and its goal be demonstrated arises only under rational basis review, not under the strict scrutiny required when fundamental constitutional rights are at stake.
Thus, it is clear from both the Supreme Court and this Circuit's precedent that even if the Second Amendment is interpreted to confer some limited right to firearm possession unrelated to militia participation - an interpretation that would certainly fly in the face of legal and historical authority - a challenged statute only infringes that right if there is no rational basis for the enactment. As argued extensively in the Government's opening brief, (see Govt. Br. at 29-36), Section 922(g)(8) easily survives this test. Further, the Government would refer this Court to the brief prepared by amicus, National Network to End Domestic Violence, which brief provides an excellent analysis of the reasons why Section 922(g)(8) rationally relates to the Government's interest in curbing domestic violence. Further, courts have determined that Section 922(g)(8) passes this rational basis test. See, e.g., United States v. Baker, 197 F.3d 211, 216 (6th Cir. 1999) ("We believe § 922(g)(8) is rationally related to the government's legitimate interest in curtailing the incidence of domestic violence . . . Congress concluded that keeping firearms away from such individuals represents a reasonable step toward reducing domestic violence. We find no reason to second-guess this reasonable conclusion.); United States v. Spruill, 61 F.Supp. 2d 587, 591 ("[Section 922(g)(8)] . . . is aimed at preventing the family violence that seems epidemic in this country. Although critics may argue that there are probably more effective ways to deal with family violence . . . it is not for this Court to reverse the will of Congress simply because a better statute could possibly be crafted . . . The elected representatives of the people are to be given wide latitude in addressing societal needs.")
IV.
EMERSON'S DUE PROCESS ARGUMENT
ALSO FAILSThe gist of Emerson's due process argument centers around his wishful and erroneous interpretation of the Supreme Court's decision in Lambert v. United States, 355 U.S. 225 (1957). Emerson cites Lambert for the proposition that if no moral opprobrium attaches to conduct prohibited under a criminal statute, then the statute unconstitutionally offends due process. This argument fails for at least four reasons.
First, Lambert does not apply to this case because Section 922(g)(8) contains an intent/mens rea element. In Lambert, a Los Angeles ordinance imposed criminal penalties on convicted felons remaining in the city for more than five days without registering with the city. Id. at 226. Because the statute contained no intent/mens rea element at all, the Court held that due process would be violated by applying the ordinance to one who had no notice of it. Id. at 229-30. In contrast, Section 922(g)(8) contains an intent element, which is located in Section 924. Section 924 proscribes that only "knowing" violations of subsection (g)(8) be punished. Accordingly, Lambert does not apply to this case.
Second, Lambert does not stand for the broad proposition that if no moral opprobrium attaches to conduct prohibited under a criminal statute, then the statute unconstitutionally offends due process. As the Supreme Court stated, "Lambert concerns the mens rea that is necessary before the State may convict an individual of crime." Texaco v. Short, 454 U.S. 516, 537 n. 33 (1982) (italics added). In fact, both the Supreme Court and this Court have noted Lambert's reach is narrow and seemingly limited to the peculiar facts of that case. Texaco, 454 U.S. at 537 n. 33 ("[Lambert's] application has been limited, lending some credence to Justice Frankfurter's colorful prediction in dissent that the case would stand as 'an isolated deviation from the strong current of precedents - a derelict on the waters of the law.'"); United States v. Giles, 640 F.2d 621, 628 (5th Cir. Unit A, 1981) ("The sweep of the Lambert case has been limited by subsequent decisions of the Supreme Court, lest it swallow the general rule that ignorance of the law is no excuse."). Any interpretation of Lambert must take into account the fact it turned on the registration ordinance's failure to proscribe mens rea/intent - not the lack of moral opprobrium.
Third, taking Emerson's "moral opprobrium" argument to its logical conclusion would lead to absurd results. Federal, state and local legislative bodies have enacted thousands, if not tens of thousands of statutes prohibiting conduct to which no moral opprobrium attaches. These laws, frequently classified or referred to as malum prohibitum, (15) as opposed to malum in se, constitute the majority of our regulatory and public welfare laws. (16) Courts would be forced to examine hundreds of statutes to determine whether, in a particular court's judgment, the conduct prohibited by such statute is morally wrong. This is obviously problematic. Imagine if courts across our country used their own moral subjectivities to determine whether moral opprobrium attached to outlawed conduct. The Supreme Court, in considering a related matter, opined that:
This is a large country and acts that are regarded as criminal in some states are lawful in others. We suspect that moral standards which prevail as to possession or sale of liquor that has evaded tax may not be uniform in all parts of the country, nor in all levels of contemporary society. How should we ascertain the moral sentiments of masses of person on any better basis than a guess?
Jordan v. De George, 341 U.S. 223, 237-38 (1951).
Further, by requiring courts to use their own subjective judgments as to what laws pass "moral opprobrium" muster would inappropriately transform judicial bodies into legislative bodies. Whether a particular law passed the "moral opprobrium" test would be tantamount to courts legislating right and wrong.
In any event, this Court previously closed the door on Emerson's proposed moral opprobrium test. In Edwards v. United States, 334 F.2d 360 (1964) this Court stated:
'It is elementary that every one is presumed to know the law of the land, whether that be the common law or the statutory law, and hence, one's ignorance of the law furnishes no defense for criminal acts, and this rule applies whether the crime charged is malum prohibitum or malum in se. * * *'
Id. at 366-67 (emphasis added) (quoting Blumenthal v. United States, 88 F.2d 522 (8th Cir. 1937).
Fourth, even if this Court were persuaded to adopt some sort of "moral opprobrium" test in which courts reviewed criminal statutes and the facts of cases on an ad hoc basis, the mere fact Emerson received notice of Section 922(g)(8) by signing a Form 4473 when he purchased the gun in question, ends this Court's due process inquiry before it need decide whether Section 922(g)(8) suffers from any due process deficiency. The Government refers the Court to its prior decision in United States v. Giles, 640 F.2d 621 (5th Cir. Unit A, 1981), as discussed in the Government's opening brief at pp. 45-46. Like Emerson, the defendant in Giles protested he did not know his receipt of a firearm was illegal - that he did not read the Form 4473. As a matter of law, this Court determined the mere fact he was "confronted with accurate written notice of the conduct proscribed by the statute when he filled out and signed a Form 4473" ended any inquiry as to whether the firearm statute violated due process. Because Emerson also received written notice of Section 922(g)(8), (17) this Court need look no further in rejecting Emerson's due process arguments and reversing the District Court's decision to declare Section 922(g)(8) unconstitutional under the Fifth Amendment.
Emerson argues that whether he received actual notice is of no moment, however, because the statute is still constitutionally deficient and, any judicial review of whether he received actual notice would improperly read into Section 922(g)(8) an actual notice/knowledge-of-illegality element. As implicitly confirmed by this Court in Giles, supra, it makes no sense to undertake an exhaustive review of the constitutionality of a statute for notice where a defendant clearly receives actual notice. Otherwise, a person who knew his illegal conduct was prohibited would be able to escape criminal prosecution. Thus, just as the Giles court determined the Form 4473 constituted notice as a matter of law, so too should this Court.
V.
EMERSON DID REPRESENT A
CREDIBLE THREAT OF HARM TO HIS WIFEA cornerstone of Emerson's argument is his assertion that he did not represent a credible threat of harm to his wife. Time and time again, Emerson tells the Court that the state domestic court issued its restraining order "without any showing" he posed a credible threat, or words to that effect. (See Emerson Br. at pp. 8, 9, 14, 16, 17, 31, 32, 50, 51, 52, 55.) The Government takes issue with this misstatement. Simply put, Emerson was shown to represent a credible threat of harm to his wife. Without rehashing all the evidence, as summarized in the Government's opening brief at pages 5-6, suffice it to say (i) Emerson threatened to kill his wife's boyfriend, (ii) Emerson phoned his wife to communicate the same, (iii) Emerson was in such a poor mental state that he could not take care of his medical patients and (iv) Emerson presented no evidence to refute his wife's contention that he posed a threat to her. Because this was the first evidence elicited at the hearing, one can safely assume that obtaining an order restraining Emerson from threatening his wife was of utmost importance to Ms. Emerson and her attorney.
Not only did Ms. Emerson establish Emerson represented a credible threat of harm to her, we hazard an educated guess that the state court would have made a finding to this effect if the issue had truly been controverted or had the judge been asked. Even Emerson's amicus, Nelson Lund, who wrote the brief of the Academics for the Second Amendment, and upon whom Emerson relies for most of his Second Amendment argument and analysis, (18) admitted in a separate law review article that:
While the testimony about Emerson's threat against his wife's friend might suggest that the Texas divorce court judge could have found that Emerson posed a credible threat to his wife's physical safety, no such finding was made.
Nelson Lund, The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders, 4 Texas Rev. L. & Pol. 157, 161 (Fall 1999) (emphasis added).
That no judicial finding was made illustrates the precise reason why this Court should not judicially inject a "judicial finding" requirement into Section 922(g)(8) - as Emerson argues in the statutory construction portion of his brief. In other words, Subsection C(ii) of § 922(g)(8) was added by Congress to protect intimate partners like Mrs. Emerson, where a domestic court, for whatever reason, be it good, bad or otherwise, makes no "judicial finding" even though the person clearly represented and was shown to represent a credible threat of harm.
VI.
THE RECORD DOES NOT SUPPORT EMERSON
CHARACTERIZING THE RESTRAINING ORDER
AS A TEXAS "BOILERPLATE" ORDER
Another cornerstone of Emerson's argument is his assertion that "orders like the instant one are virtually standard in Texas divorces," as well as other statements implying Texas domestic courts issue restraining orders in the same manner and form as was done in Emerson's divorce in San Angelo, Texas. (Emerson Br. at 51). Simply put, this assertion is not supported by the record. Though the Government acknowledges the state district judge testified that Emerson's restraining order typified those issued throughhis court, Emerson elicited absolutely no proof that Texas domestic courts do things the same way as were being done in San Angelo, Texas. Though the judge recognized the language in his order as being taken from the "Texas Family Practice Manual," the judge did not state he knew all, most or even some of the many domestic courts in Texas did things the same way he did. That he might not custom tailor his orders does not mean all Texas judges automatically include the same language, no matter what the circumstances. The bottom line is that Emerson's assertion that his so-called "boilerplate" restraining order typifies those used throughout Texas is wholly unsupported by the record.
CONCLUSION
For the reasons discussed above, the District Court erred in granting Emerson's motions to dismiss under the Second and Fifth Amendments. This Court should reverse such dismissal, reinstate the Indictment and remand the case for trial.
Respectfully submitted,PAUL E. COGGINS
UNITED STATES ATTORNEYBy:___________________________
WILLIAM B. MATEJA
Assistant U.S. Attorney
State Bar No. 13185350
1205 Texas Avenue, 7th Floor
Lubbock, Texas 79401
806/472-7351
806/472-7259 (fax)
CERTIFICATE OF SERVICE
I certify two copies of the foregoing Reply Brief, as well as an electronic copy of the same, were served on Mr. Timothy Crooks, 600 Texas Street, Suite 100, Ft. Worth, Texas, 76102-4612, by first class mail on the 27th day of January, 2000.
_____________________________
William B. Mateja
CERTIFICATE OF COMPLIANCE
Pursuant to 5th Cir. R. 32.2.7(c), the undersigned certifies this brief complies with the type-volume limitations of 5th Cir. R. 32.2.7(b).
1. EXCLUSIVE OF THE EXEMPTED PORTIONS IN 5TH CIR. R. 32.2.7(b)(3), THE BRIEF CONTAINS:10,417 words of text in monospaced typeface.
2. THE BRIEF HAS BEEN PREPARED:in monospaced (nonproportionally spaced) typeface using:
Typeface name and number of characters per inch: WordPerfect for Windows, Version 8 -- Times New Roman - 14 point.
3. THE UNDERSIGNED HAS PROVIDED AN ELECTRONIC VERSION OF THE BRIEF TO THE COURT AND TO COUNSEL REPRESENTING APPELLEE .
4. THE UNDERSIGNED UNDERSTANDS A MATERIAL MISREPRESENTATION IN COMPLETING THIS CERTIFICATION, OR CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN 5TH CIR. R. 32.2.7, MAY RESULT IN THE COURT'S STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.
William B. Mateja
1. A quick review on Westlaw revealed well over 30 newspaper articles devoted to the Emerson case the week following the District Court's Memorandum Opinion.
2. For a listing of many of these cases see Govt. Br. 18-27 and Ralph H. Brock Amicus Br. at 4-5 n. 6.
3. Which may be found in Emerson's Brief at p. 36.
4. In his brief, Emerson seemingly accepts the fact Ficke was improperly decided and Section 922(g)(9) does not violate due process. Emerson explained that, in such a situation, "society has officially branded the person involved as having stepped outside the bounds of societal mores and having engaged in unacceptable conduct." Emerson Br. at 51-52. Presumably, because society has placed its brand on such a person, the person has been removed from the class of ordinary citizens and cannot reasonably expect to be free from regulation when possessing a firearm. See United States v. Bostic, 168 F.3d 718, 722 (4th Cir. 1999). The same is true in this case. Once Emerson threatened the life of his wife's boyfriend and his wife obtained an order to protect her from the very real threat Emerson might do the same to her, Emerson was removed from the class of ordinary citizens and could not reasonably expect to be free from regulation when possessing a firearm. Thus, as Emerson himself explains, his due process claim must also fail.
5. Notwithstanding Emerson's assertion to the contrary, he did represent a credible threat of harm to his wife, all as is set forth infra, in Section V of this brief.
6. We note that amicus, the State of Alabama, which filed a brief on behalf of Emerson, truncated the legislative history, entirely omitting reference to Senator Wellstone's modification to Subsection (B) in its extensive discussion of the genesis of Section 922(g)(8). Indeed, the brief does not even mention the Subsection. See Alabama Amicus Brief at 16-18.
7. The Senate passed the House version of the 1994 Crime Bill, H.R. 3355, after striking its contents in their entirety and substituting language of the Senate version, S.1607. See 139 Cong. Rec. S17095 (daily ed., Nov. 24, 1993).
8. We note that a companion provision, 18 U.S.C. § 922(d)(8), which prohibits the sale or disposition of firearms or ammunition to a person subject to a domestic restraining order contains identical language. It is most unlikely that Congress would have acted inadvertently twice, omitting from both Section 922(g)(8) and Section 922(d)(8) a judicial finding requirement.
9. The case law and history ignored by Emerson are more than adequately set forth in the Government's opening brief and the amicus briefs of the Center to Prevent Handgun Violence et al. and the Ad Hoc Group of Law Professors and Historians, as well as by countless legal and historical researchers. See, e.g., Michael A. Bellesiles, Suicide Pact: New Readings of the Second Amendment, 16 Const. Commentary 247 (1999); Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 309 (1998); Saul Cornell, Commonplace or Anachronism, 16 Const. Commentary 221 (1999); Dennis Henigan, Arms, Anarchy and the Second Amendment, 26 Val. U.L. Rev. 107 (1991); Don Higginbotham, The Second Amendment in Historical Context, 16 Const. Commentary 263 (1999); Garry Wills, A Necessary Evil: A History of American Distrust of Government (1999).
10. See Emerson Br. at 33 n.24.
11. Nelson Lund, The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders, 4 Tex. Rev. L. & Pol. 157, 157 n.a1 (Fall 1999) (noting that Lund has advised the NRA in the Emerson case)
12. Although Emerson and his supporting amici cite Professor Tribe's recently published treatise as providing unqualified support for their position, a complete reading of the text yields a much more qualified and uncertain result. See, e.g., Tribe, supra at 901 n.221 ("[The Second Amendment's] central object is to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state."); id. at 902 ("[T]he academic debate over the scope of the Second Amendment is largely irrelevant to contemporary gun control proposals, which by and large . . . are plainly constitutional."). In particular, Professor Tribe concludes that, whatever the scope of the right protected by the Second Amendment, it is "certainly not a right to employ firearms to commit aggressive acts against other persons." Id. Seemingly, Professor Tribe would even agree Section 922(g)(8) is constitutional, as it is clearly designed to prevent such aggressive acts.
13. Emerson's support for his contention that the Framers had many reasons for enacting the Second Amendment, see Emerson Br. at 41, does not consist of any statements from the Founders or other legislative history; rather he relies solely on an academic's summary of Blackstone's theory. See id. (citing Lund, supra at 169-70).
14. Add the D.C. Circuit Court of Appeals to the list of federal appeals courts mentioned in the Government's summary on pages 16-28 of its opening brief. See Fraternal Order of Police v. United States, 173 F.3d 898 (D.C. Cir. 1999). Thus, every federal court of appeals has now recognized that possession or use of the firearm must be "reasonably related" to the preservation or efficiency of the militia to implicate Second Amendment rights.
15. Black's Law Dictionary defines "malum prohibitum" as "a thing which is wrong because prohibited; an act which is not inherently immoral, but becomes so because its commission is expressly forbidden by positive law." According to Blackstone, crimes malum in se or "crimes in themselves" are offenses against those rights which God and nature have established such as murder, theft, and perjury. Jordan v. De George, 341 U.S. 223, 237 n.10 (1951). They contract no additional turpitude from being declared unlawful by a legislative body. Id. Crimes malum prohibitum, on the other hand, enjoin only positive duties and forbid only such things as are not malum in se without any intermixture of moral guilt. Id. They do not make the transgression a moral offense or sin - "the only obligation in conscience is to submit to the penalty, if levied and his conscience will be clear, which ever side of the alternative he thinks proper to embrace." Id. (quoting Cooley's Blackstone, Vol. I (4th ed.) pp. 54, 58).
16. See the discussion of the broad range of laws classified as malum prohibitum in Justice Frankfurter's dissent in Lambert, 355 U.S. at 230; see also, United States v. Ayo-Gonzalez, 536 F.2d 652, 657-58 (5th Cir. 1976) (reviewing the background and development of "a category of crimes that 'depend on no mental element but consist only of forbidden acts or omissions'" and referring to them as regulatory or public welfare offenses); see also, United States v. Wilson, 159 F.3d 280, 294 (7th Cir. 1998) (Posner, J., dissenting) ("The federal criminal code contains thousands of separate prohibitions"). Many federal criminal statutes dealing with antitrust, the environment, currency transactions (not structuring), customs, alcohol and other regulatory statutes fall into this class of malum prohibitum statutes.
17. Emerson feebly argues the Form 4473 "has not been authenticated as having been signed by Dr. Emerson." Emerson Br. at 53. When the Government introduced the Form 4473 at the hearing on the motion to dismiss, it stated to the Court that the ATF Form 4473 "was a form that was executed by Timothy Joe Emerson on 10/10/97." (R. 2: 10). When asked by the District Court if he had any objections to the introduction of the exhibit, Emerson's attorney responded that he had no objections "for purposes of this hearing or at trial." (R.2: 11). Further, Emerson offered no evidence disputing the fact Emerson read and signed the Form 4473.
18. Emerson acknowledges his Second Amendment analysis "is taken, in large part, from the writings of Professor Nelson Lund, particularly Professor Lund's most recent article, which deals particularly with this case." (Emerson Br. at 33 n.24) (referring to Lund's The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders, 4 Tex. Rev. L. & Politics 157 (Fall 1999).