IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 99-10331
UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

TIMOTHY JOE EMERSON,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
SAN ANGELO DIVISION

BRIEF OF APPELLEE

CRIMINAL APPEAL
IRA R. KIRKENDOLL
Federal Public Defender
Northern District of Texas

BY: _________________________
TIMOTHY CROOKS
Asst. Federal Public Defender
600 Texas St., Suite 100
Fort Worth, Texas 76102
(817) 978-2753
LA State Bar No. 17541

ATTORNEY FOR DEFENDANT-
TRIAL ATTORNEY: APPELLEE,
David Guinn, Jr. Timothy Joe Emerson

STATEMENT REGARDING ORAL ARGUMENT

The issues presented are novel and of tremendous importance. Therefore, counsel for appellee Timothy Joe Emerson believes that oral argument would be of benefit to the Court.

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ..................................iii

STATEMENT OF JURISDICTION ........................1

STATEMENT OF THE ISSUES .............................2

STATEMENT OF THE CASE ................................4

A. Proceedings Below .....................................4

B. Statement of the Facts .................................6

SUMMARY OF THE ARGUMENT .......................8

STANDARD OF REVIEW ....................................11

ARGUMENT .........................................................12

CONCLUSION ......................................................57

CERTIFICATE OF SERVICE ..............................58

CERTIFICATE OF COMPLIANCE......................59

TABLE OF AUTHORITIES

CASES PAGE

Bennett v. Spear, 520 U.S. 154 (1997) ....................................................29

Bland v. United States, 299 F.2d 105 (5th Cir. 1962) .............................31

Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939 (1998) ................47

Brzonkala v. Virginia Polytechic Institute,
169 F.3d 820 (4th Cir. 1999) (en banc), cert. granted,
____ U.S. ____, 120 S.Ct. 11 (Sept. 28, 1999) .................................43, 44

Cases v. United States, 131 F.2d 916 (1942),
cert. denied, 319 U.S. 770 (1943) ......................................................36, 37

Cheese Shop International, Inc. v. Wirth,
304 F.Supp. 861 (N.D. Ga. 1969) ............................................................21

City of Cleburne, Tex. v. Cleburne Living Center,
473 U.S. 432 (1985) ...........................................................................43, 45

Commonwealth Mortgage Corp. v. Wadkins,
709 S.W. 2d 679 (Tex. App. -- Houston [14th Dist.] 1985, no writ) .....16

Congress of Racial Equality v. Douglas, 318 F.2d 95 (5th Cir.),
cert. denied, 375 U.S. 829 (1963) .............................................................21

Craig v. Boren, 429 U.S. 190 (1976) ..................................................43, 45

Dandridge v. Williams, 397 U.S. 471 (1971) ..........................................56

Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) ......13

Gustafson v. Alloyd Co., Inc., 513 U.S. 561 (1995) ...............................18

Hamling v. United States, 418 U.S. 87 (1974) ........................................32

Harmon v. Schoelpple, 730 S.W.2d 376
(Tex. App. -- Houston [14th Dist.] 1987) ................................................16

Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229 (1917) ...............21

In re Sawyer, 124 U.S. 200 (1888) ...........................................................19

In the Matter of the Marriage of Sacha Emerson and Tim Emerson,
and in the Interest of Logan Ashley Emerson, No. B-98-0939-F
(119th Jud. Dist. Ct., Tom Green County, Texas) ...................................15

Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215 (1999) .................13

Lambert v. California, 355 U.S. 225 (1957) .........................48, 49, 52, 54

Larkin v. Ayer Division of the District Court Dep't,
425 Mass. 1020, 681 N.E.2d 817 (1997) .................................................52

Lewis v. S.S. Baune, 534 F.2d 1115 (5th Cir. 1976) ........................20, 21

Lewis v. United States, 445 U.S. 55 (1980) ............................................35

Liparota v. United States, 471 U.S. 419 (1985) ......................................47

Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310 (1940) .........21

Miller v. Texas, 153 U.S. 535 (1894) .....................................................35

Morissette v. United States, 342 U.S. 246 (1952) ............................20, 31

NLRB v. Amax Coal Co., 453 U.S. 322 (1981) ...............................20, 22

Ornelas v. United States, 517 U.S. 690 (1996) .......................................11

Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983) ...42

Presser v. Illinois, 116 U.S. 252 (1886) ..................................................35

Printz v. United States, 521 U.S. 898 (1997) ..........................................36

Public Citizen v. United States Dept. of Justice, 491 U.S. 440 (1989) ..30

Public Service Comm'n of Wisconsin v. Wisconsin Telephone Co.,
289 U.S. 67 (1933) ..................................................................................21

Ratzlaf v. United States, 510 U.S. 135 (1994) .......................................46

Sable Communications of California, Inc. v. FCC,
492 U.S. 115 (1989) ................................................................................42

Sampson v. Murray, 415 U.S. 61 (1974) ................................................21

Shine v. Shine, 802 F.2d 583 (1st Cir. 1986) .........................................28

Smith v. United States, 508 U.S. 223 (1993) .........................................30

Sorrells v. United States, 287 U.S. 435 (1932) .......................................31

Spring Garden Associates v. RTC, 26 F.3d 412 (3rd Cir. 1994) ...........20

Staples v. United States, 511 U.S. 600 (1994) ........................................50

Sutherland on Statutory Construction, § 46.06
(N.J. Singer, ed. 5th ed. 1992) .................................................................29

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) .....43, 45

United States v. Bailey, 444 U.S. 394 (1980) .........................................31

United States v. Bland, 299 F.2d 105 (5th Cir. 1962) ............................14

United States v. Boerner, 508 F.2d 1064 (5th Cir.), .
cert. denied, 421 U.S. 1013 (1975) ..................................................14, 31

United States v. Cruikshank, 92 U.S. 542 (1875) ..................................34

United States v. Dancy, 861 F.2d 77 (5th Cir. 1988) .............................47

United States v. DBB, Inc., 180 F.3d 1277 (11th Cir. 1999) .................19

United States v. Emerson, 46 F.Supp.2d 598
(N.D. Tex. 1999) .................5, 6, 13, 18, 33, 34, 39, 40, 44, 46, 48, 50, 51

United States v. Ficke, 58 F.Supp.2d 1071 (D. Neb. 1999) ...................51

United States v. Granderson, 511 U.S. 39 (1994) ..................................30

United States v. Harvey, 250 F.Supp. 219 (E.D. La. 1966) ...................21

United States v. Hickman, 179 F.3d 230 (5th Cir. 1999) (en banc) ......56

United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971) ......................38

United States v. Kuban, 94 F.3d 971 (5th Cir. 1996),
cert. denied, 519 U.S. 1070 (1997) .........................................................56

United States v. Lopez, 514 U.S. 549 (1995) .....................................3, 56

United States v. Mackay, 33 F.3d 489 (5th Cir. 1994) ...........................56

United States v. Meade, 175 F.3d 215 (1st Cir. 1999) .....................51, 52

United States v. Mendoza-Lopez, 481 U.S. 828 (1987) ........................31

United States v. Miller, 307 U.S. 174 (1939) .............................34-36, 38

United States v. Panter, 688 F.2d 268 (5th Cir. 1982) ...........................31

United States v. Pierson, 139 F.3d 501 (5th Cir.),
cert. denied, ___ U.S. ___, 119 S.Ct. 220 (1998) ..................................56

United States v. Rasco, 123 F.3d 222 (5th Cir. 1997),
cert. denied, 522 U.S. 1083 (1998) ........................................................11

United States v. Rawls, 85 F.3d 240 (5th Cir. 1996) .............................56

United States v. United States Gypsum Co., 438 U.S. 422 (1978) ........31

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) ...................39

United States v. Williams, 446 F.2d 486 (5th Cir. 1971) ................38, 56

United States v. Wilson, 159 F.3d 280 (7th Cir. 1998),
cert. denied, ___ U.S. ___, 119 S.Ct. 2371 (1999) ....................47, 49, 50

United Transportation Union v. State Bar of Michigan,
401 U.S. 576 (1971) ................................................................................21

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ....................20, 21


STATUTES

8 U.S.C. § 1324(a)(1) ...............................................................................31

18 U.S.C. § 922(g) ........................................................................46, 47, 54

18 U.S.C. § 922(g)(1) .........................................................................47, 51

18 U.S.C. § 922(g)(8)..2, 4, 7-12, 14, 17, 18, 20, 22,27-34,42-47, 49,52-56

18 U.S.C. § 922(g)(8)(A) ..............................................................18, 20, 29

18 U.S.C. § 922(g)(8)(B) ..............................................................19, 20, 29

18 U.S.C. § 922(g)(8)(C)(ii) ....................................................17, 23, 26-29

18 U.S.C. § 922(g)(9) ................................................................................51

18 U.S.C. § 924(a) ....................................................................................47

18 U.S.C. § 924(a)(1)(D) ..........................................................................47

18 U.S.C. § 924(a)(2) .........................................................................46, 54

18 U.S.C. § 3731 ........................................................................................1

28 U.S.C. § 1291 ........................................................................................1

Mass. Gen. Laws. ch. 209A, § 3B (1999) ................................................52

Mass. Gen. Laws ch. 209A, § 4 (1999) ....................................................51

Tex. Fam. Code § 6.501(a)(4) & (5) ........................................................15

Tex. Fam. Code § 6.502 .....................................................................15, 16

Tex. Fam. Code § 6.504 ..........................................................................16

Tex. Fam. Code § 82.005 ........................................................................16

Tex. Fam. Code § 85.001(a) ....................................................................16

Tex. Fam. Code § 85.001(b) ...................................................................16


RULES

Fed. R. Civ. P. 52(a) ...................21

Fed. R. Civ. P. 65(a) ...................19

Fed. R. Civ. P. 65(b) ..................19

Fed. R. Civ. P. 65(d) ..................21

Tex. Code Civ. P. Rule 683 .......16


CONSTITUTIONAL PROVISIONS

U.S. Const. amend. X .................................39

U.S. Const. art. I, § 8, cls. 15-16 .................41


OTHER AUTHORITIES

11A Wright & Miller, Federal Practice and Procedure, § 2965 (1995) .....20

139 Cong. Rec. H2609 (daily ed. Apr. 21, 1994) ......................................26

139 Cong. Rec. H8726 (daily ed. Aug, 19, 1994) .....................................27

139 Cong. Rec. H10405 (daily ed. Nov. 20, 1993) ...................................23

139 Cong. Rec. S12250-92, S12296-369, S12399-419, S12557-62,
S12600 (daily ed. Aug. 22-25, 1994) ........................................................27

139 Cong. Rec. S14011 (daily ed. Oct. 20, 1993) ....................................25

139 Cong. Rec. S15340 (daily ed. Nov. 8, 1993) .....................................24

139 Cong. Rec. S15638 (daily ed. Nov. 10, 1993) ...................................25

139 Cong. Rec. S15649 (daily ed. Nov. 10, 1993) ...................................24

139 Cong. Rec. S16301 (daily ed. Nov. 19, 1993) ...................................25

William Van Alstyne, The Second Amendment and the
Personal Right to Arms, 43 Duke L. J. 1236 (1994) ..........................39, 40

Black's Law Dictionary (5th ed. 1979) ....................................................19

Coast Guard COMDTNINST M8370.7 ....................................................38

James P. Cowgill, America's 9 mm Service Pistols,
American Rifleman, Feb. 1999 ..................................................................37

H.R. 1133, 103d Cong. § 233 (1993) ........................................................23

H.R. 3355, 103d Cong. §§ 4201-03 (Wellstone), § 301
(Chafee-Hatch) (1993) ...............................................................................25

H.R. 4092, 103d Cong. § 1625 (1994) .....................................................23

H.R. Rep. No. 103-395 at 16 (1993) .........................................................23

H.R. Rep. No.103-711 at 391 (1994) ........................................................26

Jane's Infantry Weapons, 1993-94
(Jane's Information Group, Surrey, U.K., 19th ed. 1993) .........................38

John Calvin Jeffries, Jr., Legality, Vagueness, and the
Construction of Penal Statutes, 71 Va. L. Rev. 189 (March 1985) ....49, 52

Don B. Kates Jr, Handgun Prohibition and the Original Meaning
of the Second Amendment, 82 Mich. L. Rev. 204 (Nov. 1983) ...............35

Nelson Lund, The Ends of Second Amendment Jurisprudence:
Firearms Disabilities and Domestic Violence Restraining Orders,
4 Tex. Rev. L. & Politics 157 (Fall 1999) ............33, 36, 37, 39, 40, 41, 42

Antonin Scalia, A Matter of Interpretation:
Federal Courts and the Law, at 137 n.13
(Princeton University Press 1997, paperback ed.) ...................................40

Laurence H. Tribe, I American Constitutional Law,
(Foundation Press 2000) ...........................................................................33

U.S. Air Force TO 11W3-3-5-4 ...............................................................38

U.S. Army TM [Technical Manual] 9-1005-317-23 & P/2 .....................37

U.S. Marine Corps TM 1005A-23 & P/2 ................................................38

U.S. Navy SW 370-AA-MMO-010/9mm .........................................37, 38

Eugene Volokh, The Commonplace Second Amendment,
73 N.Y.U.L.Rev. 793, 807 (June 1998) ...................................................40

STATEMENT OF JURISDICTION

The jurisdiction of this Court is invoked pursuant to Title 28, United States Code, Sec. 1291, as this is an appeal from a final judgment entered by the United States District Court for the Northern District of Texas. Jurisdiction is also invoked under 18 U.S.C. § 3731.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

I. Whether the Court should construe 18 U.S.C. § 922(g)(8) narrowly, consistent with the duty to avoid serious constitutional questions and with the congressional purpose behind the statute, to apply only to state-court restraining orders supported by a substantial showing, and a judicial finding, of past domestic abuse or future dangerousness?


II. Whether the district court correctly held that, as applied to boilerplate restraining orders or injunctions issued without any particularized findings of the likelihood of violence, 18 U.S.C. § 922(g)(8) constitutes an impermissible infringement of Second Amendment rights?

III. Whether the district court correctly held that, to the extent that 18 U.S.C. § 922(g)(8) is interpreted to allow conviction without any proof that a defendant knew he was violating the law, § 922(g)(8) violates Dr. Emerson's due process rights?

IV. Whether 18 U.S.C. § 922(g)(8) is an invalid exercise of Congress's power to regulate interstate commerce and is unconstitutional, because it does not require that the firearm possessed have had a substantial effect on interstate commerce, as required by United States v. Lopez, 514 U.S. 549 (1995)?

STATEMENT OF THE CASE (1)

A. Proceedings Below

On December 8, 1998, in the Northern District of Texas, the appellee, Timothy Joe Emerson, M.D. ("Dr. Emerson"), was charged by indictment with five counts of possession of a firearm while under restraining order, in violation of Title 18, United States Code, Section 922(g)(8). (R 1: 4-14) On February 12, 1999, Dr. Emerson filed motions to dismiss based on the Fifth Amendment's Due Process Clause (R 1: 51-56), the Second and Tenth Amendments (R 1: 57-64), and the Commerce Clause (R 1: 65-72). The government filed its Response to Motions to Dismiss on February 24, 1999 (R 1: 168-204), along with a Motion to Dismiss Counts 2-5 of the Original Indictment. (2) (R 1: 166-167)

On February 25, 1999, the district court issued an order granting the government's motion to dismiss Counts 2-5. (R 1: 215) On February 26, 1999, Dr. Emerson's motions to dismiss came on for evidentiary hearing. (R 1: 253; see also R 2)

By order dated February 26, 1999 and filed on March 1, 1999, the district court granted Dr. Emerson's motions to dismiss the indictment, explaining that a Memorandum Opinion making findings and conclusions would issue at a later date. (R 1: 258) On March 30, 1999, the district court issued its Memorandum Opinion, explaining that it was granting Dr. Emerson's motions to dismiss the indictment on Second and Fifth Amendment grounds, but denying the motions to dismiss on Commerce Clause and Tenth Amendment grounds. (R 1: 262-294). On the same date, the district court issued its judgment dismissing the indictment. (R 1: 295)

On March 29, 1999, the government filed a Notice of Appeal. (R 1: 259-261) On April 6, 1999, Dr. Emerson filed a timely Notice of Cross-Appeal. (3) (R 1: 297-298)

On April 7, 1999, the district court issued an Amended Memorandum Opinion which was essentially identical to the Memorandum Opinion previously entered. (R 1: 299-331, reported at United States v. Emerson, 46 F.Supp.2d 598 (N.D. Tex. 1999)) On April 28, 1999, the government filed an Amended Notice of Appeal (R 1: 332-336), and this appeal followed.

B. Statement of the Facts

The following facts were found by the district court:

On August 28, 1998, [Dr.] 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 on 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.[ (4)] Mrs. Emerson was represented by an attorney at that hearing, and [Dr.] 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 [Dr.] Emerson against any member of his family, and the district court made no findings to that effect. Furthermore, the court did not admonish [Dr.] Emerson that if he granted the temporary restraining order, [Dr.] Emerson would be subject to federal criminal prosecution merely for possessing a firearm while being subject to the order.

Emerson, 46 F.Supp.2d at 598-99. (R 1: 299-300)

Following the September 4, 1998 hearing, Judge Sutton issued, on September 14, 1998, a document entitled "Temporary Orders." (This order was introduced as Deft.'s Exh. # 1 below, and is reproduced at Tab 8 of Dr. Emerson's Record Excerpts.) That order contained a temporary injunction enjoining Dr. Emerson from:

2. Threatening [Sacha Emerson] in person, by telephone, or in writing to take unlawful action against any person.

. . .

4. Intentionally, knowing, or recklessly causing bodily injury to [Sacha Emerson] or to a child of either party.

5. Threatening [Sacha Emerson] or a child of either party with imminent bodily injury.

Order, p. 4.

The single remaining count of the indictment (Count 1) charges Dr. Emerson with possession of a firearm, on November 16, 1998, while under this temporary injunction, in violation of 18 U.S.C. § 922(g)(8). (5)

SUMMARY OF THE ARGUMENT

Although the district court dismissed the indictment on the ground that 18 U.S.C. § 922(g)(8) was unconstitutional as applied to Dr. Emerson, this Court can and should affirm the judgment of dismissal on the basis of a statutory construction of § 922(g)(8) that will avoid the need to decide the knotty constitutional questions. Particularly, § 922(g)(8) should be construed to require that the restraining order or injunction on which prosecution is based have been issued only upon a substantial showing, and a judicial finding, that the person subject to the order represents a credible threat of violence to his "intimate partner" or child.

Such a construction gives effect to every part of § 922(g)(8) and takes into account the background traditional common law/equity rule that injunctions should issue only upon a substantial showing, and a finding, that harm is likely to result. Moreover, such a reading comports with the legislative intent as demonstrated by the legislative history of this provision. Finally, such a reading is also compelled by the rule of lenity.

Whether this construction is implemented as an implied element of the offense, or as an affirmative defense that can be raised pretrial, it is clear from the record below that the boilerplate, pro forma temporary injunction relied on in this case does not fit the bill, as it was issued without any showing, or any finding, that Dr. Emerson posed a threat to his wife or child. Accordingly, the judgment of dismissal may be affirmed without the need to reach any of the constitutional issues.

If the Court does reach the constitutional issues, the district court correctly held that § 922(g)(8) violated Dr. Emerson's Second Amendment rights. While no Supreme Court or Fifth Circuit case has ever resolved whether the Second Amendment guarantees an individual right or a collective right of the states, the text, structure, and history of the Second Amendment demonstrate that it guarantees an individual right to keep and bear arms. Because § 922(g)(8) is not sufficiently narrowly tailored to achieve the goal which it purports to serve, it constitutes an impermissible infringement of the Second Amendment right.

The district court also correctly held that § 922(g)(8) violates the Fifth Amendment guarantee of due process. Section 922(g)(8) apparently does not require that a defendant know that his possession of a firearm is in violation of the law. Generally, ignorance of the law is truly no excuse for criminal conduct. However, where society does not attach a certain level of moral opprobrium to particular conduct, due process requires that a defendant be shown to be aware of a law prohibiting that conduct before criminal liability may be imposed. Section 922(g)(8) is such a statute, at least when applied to restraining orders or injunctions entered pro forma, without any showing or finding of dangerousness (as is the case here).

Last, while recognizing that the issue is settled by Fifth Circuit precedent, Dr. Emerson preserves for possible further review his contention that § 922(g)(8) exceeds Congress's authority to regulate interstate commerce and is hence unconstitutional on its face.

STANDARD OF REVIEW

All of the issues presented concern the constitutionality and statutory interpretation of 18 U.S.C. § 922(g)(8); and this Court "review[s] the constitutionality of a federal statute and the district court's interpretation of a statute de novo." United States v. Rasco, 123 F.3d 222, 226 (5th Cir. 1997) (citations omitted), cert. denied, 522 U.S. 1083 (1998). The district court's findings of historical fact, however, are reviewed only for clear error. See, e.g., Ornelas v. United States, 517 U.S. 690, 699 (1996).

ARGUMENT

I. Consistent With its Duty to Avoid a Serious Constitutional Question and With the Text and Legislative History of 18 U.S.C. § 922(g)(8), This Court Should Adopt a Reading of the Statute That Requires a Substantial Showing, and a Judicial Finding, of Past Domestic Abuse or Future Dangerousness; and Under That Reading, the Judgment Below Should Be Affirmed. (4)

The district court held that

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.

. . .

All that is required for prosecution under the Act is a boilerplate order with no particularized findings. Thus, the statute has no real safeguards against an arbitrary abridgement of Second Amendment rights. 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.

United States v. Emerson, 46 F.Supp.2d 598, 610-11 (N.D. Tex. 1999); see also id. at 611 ("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.")

The district court did indeed identify a valid concern: whether "a boilerplate order with no particularized findings" that a defendant poses a danger to his "intimate partner" or their child can strip the defendant of his Second Amendment rights. Likewise, there is a substantial question whether one under such an order has sufficient notice, under the Fifth Amendment, that his conduct is illegal. See Emerson, id. at 611-13. It is Dr. Emerson's position that the district court correctly resolved these constitutional questions.

But, before this Court reaches these constitutional questions, it must "first ascertain whether a construction of the statute is fairly possible by which the constitutional question may be avoided." Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 345 (1998) (internal quotation marks and citations omitted); see also Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 1222 (1999) ("where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter") (internal quotation marks and citations omitted). In fact, such a saving construction is possible: § 922(g)(8) can -- and should -- be construed to require an order issued upon a substantial showing, and with a judicial finding, that the defendant poses a credible threat of violence to the "intimate partner" or child that he is restrained or enjoined from harming. (6) Indeed, this Court has not hesitated to imply an otherwise missing element into a federal criminal statute to avoid a serious constitutional issue and effectuate congressional intent. See, e.g., United States v. Bland, 299 F.2d 105, 108-09 (5th Cir. 1962); United States v. Boerner, 508 F.2d 1064, 1067-68 (5th Cir.), cert. denied, 421 U.S. 1013 (1975). Because the order here does not meet these requirements, the district court's judgment dismissing the indictment against Dr. Emerson should be affirmed.


A. The September 14, 1998 order on which the government relies was a boilerplate, pro forma order issued without a substantial showing, or any judicial finding, that Dr. Emerson posed a credible threat of violence to his wife or child.

The critical order (7) in this case was issued on September 14, 1998 in Dr. Emerson's divorce proceeding. (8) Relevant to this case, that order contained a temporary injunction enjoining Dr. Emerson from:

2. Threatening [Sacha Emerson] in person, by telephone, or in writing to take unlawful action against any person.

. . .

4. Intentionally, knowing, or recklessly causing bodily injury to [Sacha Emerson] or to a child of either party.

5. Threatening [Sacha Emerson] or a child of either party with imminent bodily injury.

Order, p. 4.

This order was issued pursuant to Texas Family Code § 6.502, which, when "a suit for dissolution of a marriage is pending," allows the court in which such suit is pending to grant a "temporary injunction for the . . . protection of the parties as deemed necessary and equitable," including an order enjoining one party from "intentionally, knowingly, or recklessly causing bodily injury to the other to a child of either party" or "threatening the other or a child of either party with imminent bodily injury." See Tex. Fam. Code § 6.502, intro. para. & (9), incorporating by reference Tex. Fam. Code § 6.501(a)(4) & (5).

Notably, however, a temporary injunction issued under § 6.502 apparently represents an exception to the general rule -- found in Tex. Code Civ. P. Rule 683 -- that "[e]very order granting an injunction . . . shall set forth the reasons for its issuance . . . ." See, e.g., Commonwealth Mortgage Corp. v. Wadkins, 709 S.W. 2d 679, 680 (Tex. App. -- Houston [14th Dist.] 1985, no writ) (temporary injunction deficient under reasons requirement of Rule 683 could not be saved by characterizing it as an order under justified under exception found in former section 3.58 of the Family Code [now codified at §§ 6.502 and 6.503], as it was not directed to a party to the divorce proceeding); cf. Harmon v. Schoelpple, 730 S.W.2d 376, 381 & n.1 (Tex. App. -- Houston [14th Dist.] 1987) (temporary injunction which did not comply with requirements of Rule 683 was invalid against nonparties to the divorce proceeding, but was valid against husband pursuant to former § 3.58).

In fact, the temporary injunction in this case was issued without any showing or finding that Dr. Emerson posed a credible threat of violence or bodily injury to either Sacha Emerson or Logan Ashley Emerson. (9) Although a hearing was held prior to issuance of the temporary injunction, there was no evidence adduced that Dr. Emerson posed a credible threat of violence or bodily injury to either Sacha or Logan Ashley. (10) Certainly there was no finding of such a threat by the state court either at the hearing or in the order itself. (11)

B. Section 922(g)(8) should be construed to require an order issued only upon a substantial showing, followed by a judicial finding, that the defendant presents a credible threat of violence or bodily injury to an "intimate partner" or a child.

To read § 922(g)(8)(C)(ii) as the government does -- i.e., authorizing prosecution of persons under a restraining order or injunction issued without a substantial showing or a judicial finding of a threat of violence or bodily injury -- is extremely problematic for a number of reasons. First, the government's reading of the statute renders subsection (C)(ii) almost completely redundant to subsection (B). It is impossible to imagine an order which meets the standard of (B) which does not also meet the standard of (C)(ii). See Emerson, 46 F.Supp.2d at 611 (noting that (C)(ii) "merely repeats in different wording the requirement in subsection (B)"). (12) But statutes should, if possible, be construed to avoid such redundancy. See, e.g., Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 574 (1995).

Second, such a reading nullifies the requirement, found at § 922(g)(8)(A), that the order issue only "after a hearing at which such person received actual notice, and at which such person had an opportunity to participate." Notice and a hearing are empty formalities, however, unless they also imply that no order will issue in the absence of the requisite proof and a judicial finding that there has been such proof.

In fact, the better reading of § 922(g)(8), and one which gives effect to all of its parts, is that § 922(g)(8) requires an order issued upon a substantial showing, and a judicial finding, of a credible threat of violence to the "intimate partner" or child. This reading is supported by both the text and the legislative history of § 922(g)(8), and avoids the knotty constitutional questions presented by the government's reading.

1.

That Congress intended to require a substantial evidentiary showing, and a judicial finding, of dangerousness is evidenced by its use of the word "restrains" in 18 U.S.C. § 922(g)(8)(B). The word "restrain" is a venerable term of art in equity jurisprudence, used in connection with equitable orders which prohibit or forbid some type of action. See, e.g., In re Sawyer, 124 U.S. 200, 210-14 (1888) (using word "restrain" throughout in discussion of historical and contemporary equity practice with respect to injunctions). To be sure, such equitable "restraining" orders may be either "temporary restraining orders" ("TROs"), issued without a hearing or even notice, see, e.g., Fed. R. Civ. P. 65(b), or they may be injunctions issued after notice and a hearing, see, e.g., Fed. R. Civ. P. 65(a). See United States v. DBB, Inc., 180 F.3d 1277, 1282 (11th Cir. 1999) (holding that the term "restraining order" is not always used to denote TROs but rather "may be read to mean all forms of injunctive relief"); cf. Black's Law Dictionary at 1181 (5th ed. 1979) (defining the term "restrain" as, among other things, "[t]o enjoin"). But, in the context presented in § 922(g)(8)(B), the term "restrains" clearly refers to the latter type of "restraining" order, i.e., an injunction.

Where a "restraining" order issues after notice and a hearing, the courts consider it to be an injunction rather than a TRO, regardless how it is labeled. (13) And the "restraining" order referred to in § 922(g)(8) must be one "issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; . . . ." 18 U.S.C. § 922(g)(8)(A). Thus, by its use of the term "restrains" in § 922(g)(8)(B), coupled with the notice and hearing requirements of § 922(g)(8)(A), Congress made it clear that the "orders" that trigger § 922(g)(8) are "injunctions" as that term has been traditionally understood. (14)

But injunctions have traditionally issued only upon a substantial showing, and a judicial finding, of the likelihood of the threatened harm. "An injunction can issue only after the plaintiff has established that the conduct sought to be enjoined is illegal and that the defendant, if not enjoined, will engage in such conduct." United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 584 (1971) (emphasis added). (15), (16) Where this showing is not made, injunctive relief is not available. (17) Moreover, the courts have also stressed the importance of a judicial finding that the requisite showing has been made. (18) Indeed, the findings requirement is codified into federal law by Fed. R. Civ. P. 52(a) and 65(d).

"These commonplace considerations applicable to cases in which injunctions are sought in the federal courts reflect . . . a [traditional] practice of which Congress is assuredly well aware." Weinberger, 456 U.S. at 313. "Given th[ese] established rule[s] . . . and Congress' use of [a] term[ ] long established in the courts of chancery," it must be presumed that, in § 922(g)(8), Congress intended to require orders meeting these traditional requirements for injunctions "unless Congress has unequivocally expressed an intent to the contrary." Amax Coal Co., 453 U.S. at 330.

But there is no evidence that Congress, in enacting § 922(g)(8), intended to reach persons under the type of boilerplate, pro forma order at issue here. Quite the contrary: the legislative history of this enactment reveals that Congress intended to target only those who were judicially found (necessarily after the presentation of substantial evidence) to constitute a credible threat of violence to their intimate partners or children.

2.

The language now codified as § 922(g)(8) had three distinct precursor provisions in the House and Senate versions of the 1994 Crime Bill. The first precursor provision had its roots in H.R. 1133, the "Violence Against Women Act," introduced by Rep. Patricia Schroeder on February 24, 1993. As first introduced, the bill did not address firearms possession, but an amendment in subcommittee added a provision (section 233) very similar (and with an identical title) to the provision now codified as § 922(g)(8). Section 233 would have created a firearms disability based on a court order that:

(A) was issued after a hearing of which such person received actual or constructive 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 engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury; and

(C) includes a finding that such person represents a credible threat to the physical safety of such intimate partner.

H.R. Rep. No. 103-395 at 16 (1993). The major difference between Representative Schroeder's initial proposal and the language ultimately enacted is that section 233 did not include an analogue to § 922(g)(8)(C)(ii) -- the provision on which the Government relies in this case. Thus, the Schroeder proposal would have created a firearms disability only when the court order "includes a finding that such person represents a credible threat to the physical safety of such intimate partner." (19)

The Schroeder bill passed the House of Representatives by a vote of 421-0, but was never acted on by the Senate. 139 Cong. Rec. H10405 (daily ed. Nov. 20, 1993). Language identical to that in section 233 of the Schroeder bill, however, was later added to the House bill that evolved into the 1994 Crime Act. Compare H.R. 1133, 103d Cong. § 233 (1993), with H.R. 4092, 103d Cong. § 1625 (1994).

The second precursor provision was an amendment offered by Senator Wellstone to S. 1607, which was the Senate crime bill that was under consideration in that chamber while the House worked on its own version. The Wellstone amendment would have imposed a firearms disability on anyone who:

(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, or 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) (emphasis added). The Wellstone amendment was initially tabled, but it later passed by voice vote (without debate) when it was offered en bloc with several other amendments by the bill's floor manager. 139 Cong. Rec. S15649 (daily ed. Nov. 10, 1993). When he originally proposed this language as part of a freestanding bill (S. 1570), Senator Wellstone emphasized that it would apply to anyone who "has been convicted of abusing their spouse or child, or has a restraining order issued against them because of threatened abuse." 139 Cong. Rec. S14011 (daily ed. Oct. 20, 1993) (emphasis added).

The third precursor was an amendment to S. 1607 offered by Senator Dole on behalf of Senators Chafee and Hatch. This amendment, which was also proposed en bloc with other amendments and passed by voice vote without debate, would have created a firearms disability on any person:

(A) who is subject to an order, issued by a Federal or State court after a hearing about which that person received actual notice and at which that person had the opportunity to participate, restraining that person from harassing, stalking, threatening, or engaging in other such conduct that would place another person in fear of bodily injury or the effect of which conduct would be to place a reasonable person in fear of bodily injury; and

(B)whom the court issuing the order finds under this subsection to represent a credible threat to the physical safety of that other person.

139 Cong. Rec. S15638 (daily ed. Nov. 10, 1993) (emphasis added). Once again, the firearms disability would arise only after a judicial finding of future dangerousness.

When the Senate took up H.R. 3355, it substituted the text of S. 1607 for the bill passed by the House, and then passed that substitute language. 139 Cong. Rec. S16301 (daily ed. Nov. 19, 1993). This bill contained both the Wellstone amendment and the Chafee-Hatch amendment. H.R. 3355, 103d Cong. §§ 4201-03 (Wellstone), § 301 (Chafee-Hatch) (1993) (engrossed Senate amendment). On April 21, 1994, the House added the text of H.R. 4092 (which contained the Schroeder provision) to H.R. 3355. 139 Cong. Rec. H2609 (daily ed. Apr. 21, 1994).

Thus, two different versions of H.R. 3355 (one from the House and one from the Senate), containing a total of three provisions dealing with firearms disabilities and domestic violence, were submitted to the Conference Committee that eventually proposed the bill that became the 1994 Crime Act. None of these three provisions purported to dispense with the need for a judicial finding of actual or threatened domestic violence.

New language, now codified as § 922(g)(8)(C)(ii), was devised by the Conference Committee. The only explanation the Committee offered for its new language was a cryptic statement that:

Senate sections 301, Persons Subject to Restraining Orders [Chafee-Hatch], and 4201-03, Prohibition Against Disposal of Firearms to, or Receipt of Firearms by, Persons Who Have Committed Domestic Violence [Wellstone], recede to House sections 1624-25 [Schroeder], with modifications.

H.R. Rep. No.103-711 at 391 (1994). The major change that the Conference Committee made to the Schroeder provision (section 1625) was the addition of what is now § 922(g)(8)(C)(ii). This is the provision that appears on its face to impose a disability on those (like Dr. Emerson) who have never been found to pose any threat to their wives or children. But neither the Chafee-Hatch nor the Wellstone provisions had purported to eliminate the need for a finding of dangerousness. Those provisions of the Senate bill therefore cannot explain this apparent "modification" introduced by the Conference Committee.

There is simply no indication that Congress's last-minute addition of § 922(g)(8)(C)(ii) was intended to delete the finding requirement -- present in all three precursors of § 922(g)(8) -- so as to permit prosecution where (as here) a person has never been judicially found to present a threat to his intimate partner or child. Rather, it appears that poor draftsmanship occurred when the Conference Committee, which had dozens of members, was rushing to complete work on a massive crime bill that stretched over hundreds of pages, and was the subject of two separate conference reports and many serious controversies. See 139 Cong. Rec. H8726 (daily ed. Aug, 19, 1994) (motion to recommit H.R. Rep. No. 103-694 to the Conference Committee); 139 Cong. Rec. S12250-92, S12296-369, S12399-419, S12557-62, S12600 (daily ed. Aug. 22-25, 1994) (Senate consideration and passage of H.R. Rep. No. 103-711). In similar circumstances, the First Circuit, in an opinion issued by a panel including then-Judge Breyer, declined to treat an unexplained last-minute addition as changing the intent evidenced by prior versions of the bill and the background principles of that area of the law:

The final text of the bill was an amalgam of the Commission, House and Senate versions . . . .

This final version, produced in the "harried and hurried atmosphere" in which the bill was finally enacted, should not be read to effect a reversal of the long-standing principles governing this area. Such a reversal would surely have been noted in the congressional discussions.

Shine v. Shine, 802 F.2d 583, 587 (1st Cir. 1986). Likewise, the last-minute, and unexplained, addition of § 922(g)(8)(C)(ii) should not be construed to have somehow deleted the requirement -- implied by the use of the word "restrains," see discussion supra, and explicit in every precursor of the final enactment of § 922(g)(8) -- of a judicial finding, particularly since there is an at least equally plausible and far less problematic explanation for the addition of § 922(g)(8)(C)(ii), as will be explained below.

3.

Rather than eliminating the finding requirement required by every precursor of § 922(g)(8), it is far more likely that the last minute addition of (C)(ii) was meant to close a loophole extant in (C)(i). Subsection (C)(i) requires a court order which "includes a finding that the person represents a credible threat to the physical safety of such intimate partner of child." (Emphasis added.) But this would, on its face, seem to exclude the situation where a finding is made in a separate memorandum opinion or in the transcript of the hearing at which the judge heard the evidence that supports the finding.

This loophole would make no sense from Congress's point of view, since they had no reason to care where the finding was memorialized. If the court interprets (C)(ii) to include an implicit requirement of a finding, then (C)(ii) closes the loophole that would otherwise have been left open by (C)(i), and the statute becomes a coherent whole: (C)(i) applies to cases where the finding is in the order itself, and (C)(ii) applies to cases where the order is explicit in the prohibition against the use or threat of physical force but the underlying finding of a credible threat is memorialized somewhere other than in the order itself.

This construction of § 922(g)(8) has the virtue that "effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant . . . .," Sutherland on Statutory Construction, § 46.06 (N.J. Singer, ed. 5th ed. 1992), unlike the government's reading, which renders § 922(g)(8)(A) (requiring notice and hearing) effectively a nullity and which renders § 922(g)(8)(C)(ii) completely redundant to § 922(g)(8)(B), in contravention of this "cardinal principle of statutory construction." (20) Although (C)(ii) could, in isolation, concededly be read literally to allow prosecution where no finding has been made, that reading should be eschewed since it would not only contravene this principle of statutory construction, but would also be contrary to every indication of legislative intent and create grave and doubtful constitutional questions. See Public Citizen v. United States Dept. of Justice, 491 U.S. 440, 454-55 (1989).

Principles of statutory construction and the legislative history behind § 922(g)(8) thus establish that the best reading of § 922(g)(8) is that which requires an order issued upon a substantial showing, and a judicial finding, of a threat or danger to an "intimate partner" or child. But, to paraphrase Justice Scalia, "[e]ven if the [Court] does not consider the issue to be as clear as [Dr. Emerson] do[es], [the Court] must at least acknowledge . . . that it is eminently debatable -- and that is enough, under the rule of lenity, to require finding for [Dr. Emerson]." Smith v. United States, 508 U.S. 223, 246 (1993) (Scalia, J., dissenting). "In these circumstances -- where text, structure, and history fail to establish that the Government's position is unambiguously correct -- [the courts] apply the rule of lenity and resolve the ambiguity in [the defendant's] favor." United States v. Granderson, 511 U.S. 39, 54 (1994). The rule of lenity therefore tips the balance in favor of Dr. Emerson's construction of § 922(g)(8).


C. Under the proper construction of § 922(g)(8), the indictment against Dr. Emerson was properly dismissed.

For all of the reasons discussed above, § 922(g)(8) is best read as being triggered by an order issued only after a substantial showing, and a judicial finding, that the defendant presents a credible threat of violence or danger to his "intimate partner" or child. Whether this requirement is denominated an implied element of the offense, (21) or whether the lack of a substantial showing and a judicial finding is deemed an affirmative defense (22) which can be raised pretrial in a motion to dismiss the indictment, (23) dismissal of the indictment was proper here.

If the substantial showing and judicial finding are implied elements of § 922(g)(8), dismissal was proper because the indictment failed to allege these elements. See Hamling v. United States, 418 U.S. 87, 117 (1974) (indictment must "set forth all the elements of the offense intended to be punished") (internal quotation marks and citation omitted). Likewise, if the lack of a substantial showing and judicial finding constitutes an affirmative defense, then Dr. Emerson has irrefutably shown that these were lacking in his case. Accordingly, the district court's judgment of dismissal of the indictment should be affirmed on this ground, and the Court need not reach the constitutional issues discussed below.

II. The District Court Correctly Held That, As Applied to Boilerplate Restraining Orders or Injunctions Issued Without any Particularized Findings of the Likelihood of Violence, 18 U.S.C. § 922(g)(8) Constitutes an Impermissible Infringement of Second Amendment Rights. (24)

In its scholarly opinion, the district court conducted a thorough examination of the text and structure of the Second Amendment, (25) the historical context leading to the Second Amendment's adoption, Second Amendment jurisprudence, and prudential concerns, and concluded that the Second Amendment confers an individual right to keep and bear arms, not merely a collective right for states to arm their own militias. (26) See Emerson, 46 F.Supp.2d at 600-10. The district court then concluded that "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." Id. at 610.

The district court was correct. The district court's scholarly opinion and the scholarly briefs of amici curiae in support of Dr. Emerson (27) persuasively demonstrate that the Second Amendment confers an individual right, and that prosecution of Dr. Emerson under 18 U.S.C. § 922(g)(8) impermissibly infringes upon this right. The government's attempts to argue otherwise are without merit, as will be demonstrated below.


A. Neither Supreme Court nor Fifth Circuit precedent addresses the issue presented here.

The government's charge that the district court's decision in this case "broke with the long-standing rule of stare decisis," Govt. Br. at 11, is completely unfounded. Neither Supreme Court nor Fifth Circuit precedent addresses the issue presented here.

The only relevant Supreme Court authority is the Supreme Court's 1939 decision in United States v. Miller, 307 U.S. 174 (1939). (28) In Miller, the defendants were charged with moving a sawed-off shotgun in interstate commerce without having duly registered that shotgun as required by the National Firearms Act of 1934. See id. at 175. The district court quashed the indictment on the ground that the criminal statute violated the Second Amendment. See id. at 177.

The Court reversed, holding as follows:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. 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.


Id. at 178 (citation omitted).

The Court's "brief and highly ambiguous" (29) opinion in Miller should not be read to lay out any general rules about the Second Amendment. See Lund, supra, at 166-71. As Justice Thomas has recently explained,

[i]n Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed-off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.


Printz v. United States, 521 U.S. 898, 938 n.1 (1997) (Thomas, J., concurring) (citation omitted); see also Cases v. United States, 131 F.2d 916, 922 (1942) ("[W]e do not feel that the Supreme Court in [Miller] was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go."), cert. denied, 319 U.S. 770 (1943).

In fact, Miller left unanswered more questions than it answered:

. . . Miller did not specify what the Court thought a "well regulated militia" was. Neither did Miller purport to say what could be said to have a reasonable relationship to the "preservation and efficiency" of the militia, or what such a relationship might require. Nor did the Court say that contributions to "the common defense" would necessarily have to have a military character.


Lund, supra, at 169.

In light of the ambiguities inherent in Miller, and in light of the fact that Miller was the result of a one-sided presentation of the case (the defendants in that case did not appear in the Supreme Court to defend the lower court's quashing of the indictment), Miller is best read narrowly "to approve 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." Lund, supra, at 171. Thus read, Miller does not resolve the Second Amendment questions presented here. (30)

Nor has this Court ever taken up the Second Amendment questions left open by Miller. (31) This Court's only two reported post-Miller Second Amendment decisions involved the identical question settled by Miller (i.e., whether possession of a sawed-off shotgun is protected by the Second Amendment); and naturally this Court, bound by stare decisis, summarily decided these challenges on the basis of Miller. See United States v. Johnson, 441 F.2d 1134, 1136 (5th Cir. 1971); United States v. Williams, 446 F.2d 486, 487 (5th Cir. 1971).

Thus, this case requires this Court to address for the first time important questions about the scope of the Second Amendment. Thorough examination of the relevant authorities will, however, demonstrate that the district court correctly found a Second Amendment violation in this case.


B. The Second Amendment confers an individual, personal right to keep and bear arms, not merely a collective right for states to arm their own state militias.

The text of the Second Amendment provides that "the right of the people to keep and bear Arms, shall not be infringed." (Emphasis added.) The term "'the people' seems to have been a term of art employed in select parts of the Constitution . . . suggest[ing] that 'the people' protected by . . . the . . . Second Amendment[ ] refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). "The phrase 'right of the people' is the same term used in the First and Fourth Amendments, where it undoubtedly protects the rights of individuals, not states." Lund, supra, at 173 (footnote omitted).

Moreover, the Constitution clearly distinguishes between "the people" and "the States." See, e.g., U.S. Const. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.") (emphasis added). Thus, it seems implausible that the Framers of the Constitution meant to confer a right only upon the States, rather than the individuals making up "the people."

This textual interpretation is bolstered by the fact that the Second Amendment is contained in a bill of individual, not states', rights. See Emerson, 46 F.Supp.2d at 607; see also William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L. J. 1236, 1243 n.19 (1994). As Justice Scalia has noted, "It would also be strange to find in the midst of a catalog of the rights of individuals a provision securing to the states the right to maintain a designated 'Militia.'" Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, at 137 n.13 (Princeton University Press 1997, paperback ed.) (emphasis in original).

Indeed, without the Second Amendment's prefatory "Militia" clause (sometimes termed the "justification clause"), "there would be no question whether the right is individual in nature." Emerson, id. at 601 (citation omitted). But

[g]rammatically, this prefatory phrase does not limit or qualify the operative clause. The prefatory phrase offers a reason for adopting the rule laid down in the operative clause, but that reason is perfectly consistent with protecting the right of private individuals to keep and bear arms.

Lund, supra at 175; accord Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U.L.Rev. 793, 807 (June 1998) ("the justification clause may aid construction of the operative clause but may not trump the meaning of the operative clause: To the extent the operative clause is ambiguous, the justification clause may inform our interpretation of it, but the justification clause can't take away what the operative clause provides") (emphasis in original). (32)

As Professor Lund explains, to the Framers the term "well regulated Militia" did not mean a militia that was "heavily regulated," or even "more regulated," as it suggests to the modern reader in this age of extensive government regulation. Rather, the Framers would have understood the term "well regulated" to mean "not overly regulated" or "not inappropriately regulated." Given that Congress had, in Article I, been granted virtually plenary authority to regulate the militia, see U.S. Const. art. I, § 8, cls. 15-16, the Framers sought, by the Second Amendment, "simply to forbid one inappropriate regulation (among the infinite possible regulations) that Congress might be tempted to enact . . . : disarming the citizenry from among which the militia (a constitutionally undefined entity) must be constituted." Lund, supra, at 175 (emphasis in original; footnote omitted).

Read in this fashion, the justification clause imposes no limit on the individual right to keep and bear arms so clearly guaranteed by the operative clause. It states merely one reason (among many others that the Framers had (33)) for guaranteeing the individual right to bear arms. And the enactment history of the Second Amendment fully supports the notion that the Second Amendment protects the individual right of citizens to keep and bear arms: "[i]ndeed, there is absolutely no evidence that anyone who spoke about the Second Amendment during the period when it was being considered and ratified ever suggested that it protected a right of states rather than of individuals." Lund, supra, at 177 (emphasis in original; footnote omitted); see also id. at 177-83 (discussing the legislative history of the Second Amendment).

Thus, the district court correctly concluded that the Second Amendment guarantees an individual right to keep and bear arms.

C. The district court correctly concluded that, as applied to this case, § 922(g)(8) violates the Second Amendment right to keep and bear arms.

Because § 922(g)(8) amounts to a complete ban on the fundamental Second Amendment right to keep and bear arms, "strict scrutiny" is appropriate: i.e., the government must demonstrate that "the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983). The regulation must be "the least restrictive means to further the articulated interest." Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989) (emphasis added).

Clearly, the government cannot meet this burden here. But even under lesser forms of scrutiny -- e.g., intermediate scrutiny like that applied to First Amendment claims dealing with content-neutral regulation (34) or to equal protection claims based on gender, (35) or even a stringent application of rational basis scrutiny (36) - § 922(g)(8) violates Dr. Emerson's constitutional rights.

It is certainly questionable whether the federal government -- as opposed to state governments -- has any "legitimate" interest (much less a "compelling" or "substantial" interest) in preventing or punishing firearms-related domestic violence. The 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. But there is generally only the most tenuous link to interstate commerce in such cases. Cf. Brzonkala v. Virginia Polytechic Institute, 169 F.3d 820, 838-52 (4th Cir. 1999) (en banc) (finding insufficient nexus between intrastate violence to women and interstate commerce to sustain Violence Against Women Act as exercise of Congress's power to regulate interstate commerce), cert. granted, ____ U.S. ____, 120 S.Ct. 11 (Sept. 28, 1999). Moreover, the states are perfectly capable of passing laws against, and prosecuting, firearms-related domestic violence.

But the Court need not debate the quality of the governmental interest in this case, because § 922(g)(8) clearly fails the second part of each of these tests. As the district court correctly pointed out, "[i]f 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." Emerson, id. at 610-11.

But § 922(g)(8) sweeps far more broadly than this. (37) "All that is required for prosecution under the Act is a boilerplate order with no particularized findings." Id. at 611. "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." Id.

Prohibiting firearms to one who (like Dr. Emerson) is subject to a domestic violence restraining order issued pro forma in a divorce proceeding, without any evidence or judicial finding of dangerousness, is so attenuated from the goal of preventing firearms-related domestic violence as to render the prohibition irrational. Cf. Cleburne Living Center, 473 U.S. at 447-50. Certainly, such a regulation is not "substantially related" to achievement of that goal, (38) and it "burden[s] substantially more [firearms possession] than is necessary to further the government's legitimate interest." Turner Broadcasting System, 512 U.S. at 662. And, even more certainly, § 922(g)(8) is not the "least restrictive means" of preventing firearms-related domestic violence.

Thus, inasmuch as § 922(g)(8) permits prosecution based on boilerplate, pro forma restraining orders and injunctions entered without any proof of past violence or the threat of future violence (e.g., the injunction relied on in this case), § 922(g)(8) constitutes an impermissible infringement on Second Amendment rights. Therefore, the district court correctly held that § 922(g)(8) was unconstitutional as applied to this case. This Court should affirm the judgment below.

III. The District Court Correctly Held That, to the Extent that 18 U.S.C. § 922(g)(8) is Interpreted to Allow Conviction Without Any Proof that a Defendant Knew He Was Violating the Law, § 922(g)(8) Violates Dr. Emerson's Due Process Rights.

As an alternative basis for its dismissal of the indictment, the district court held that, to the extent 18 U.S.C. § 922(g)(8) permits prosecution and conviction of a person who was not aware of that law, that statute violated due process.See Emerson, 46 F.Supp.2d at 612-13. Although this Court need not reach this issue if it agrees with Dr. Emerson's arguments on Issues I or II, supra, the district court was clearly correct in its holding for the reasons which follow.

While the maxim "Ignorance of the law is no excuse" is a familiar one, it is in fact riddled with numerous exceptions. Generally, these exceptions have been arrived at as a matter of statutory construction, often by construing the mens rea requirement of "willfulness" to require knowledge that the conduct in question violates the law. See, e.g., Ratzlaf v. United States, 510 U.S. 135, 141-49 (1994).

However, such a statutory construction may not be possible for § 922(g)(8). The requisite statutory mens rea for a violation of § 922(g)(8) is found in 18 U.S.C. § 924(a)(2) which provides for the punishment of one who "knowingly" violates 18 U.S.C. § 922(g). Compare 18 U.S.C. § 924(a)(1)(D) (punishing other firearms crimes only where these are committed "willfully"). In Bryan v. United States, 524 U.S. 184 (1998), the Supreme Court, while addressing the meaning of "willfully" under § 924(a)(1)(D), had this to say about the "knowingly" language in § 924(a):

[U]nless the text of the statute dictates a different result, the term "knowingly" merely requires proof of knowledge of the facts that constitute the offense.

With respect to the three categories of conduct that are made punishable by § 924 if performed "knowingly," the background presumption that every citizen knows the law makes it unnecessary to adduce specific evidence to prove that "an evil-meaning mind" directed the "evil-doing hand."

Bryan, 524 U.S. at 193 (footnotes omitted); see also United States v. Dancy, 861 F.2d 77, 81-82 (5th Cir. 1988) (Court held that § 924(a)'s requirement that a violation of § 922(g)(1) [the felon-in-possession statute] be committed "knowingly" did not require the government to prove that the defendant knew that his conduct violated the law). Bryan and Dancy may well foreclose an argument that § 922(g)(8) requires proof that the defendant knew his conduct violate the law. But see United States v. Wilson, 159 F.3d 280, 293-96 (7th Cir. 1998) (Posner, C.J., dissenting) (arguing that § 922(g)(8) should be construed to include such a requirement), cert. denied, ___ U.S. ___, 119 S.Ct. 2371 (1999); cf. Liparota v. United States, 471 U.S. 419, 424-28 & 433 (1985) (construing statute penalizing "knowing" use of food stamps "in any manner not authorized by [the statute] or the regulations" to require proof that defendant knew his conduct violated the statute or the regulations, where "to interpret the statute otherwise would be to criminalize a broad range of apparently innocent conduct").

But to hold that the statute does not require proof of knowledge that the conduct was illegal does not end the inquiry. In some circumstances, irrespective of the statutory language, due process requires that a defendant be actually aware that he is violating the law before he may be convicted. The seminal case in this regard is Lambert v. California, 355 U.S. 225 (1957), which the district court in this case relied on in reaching its conclusion that this statute was unconstitutional. See Emerson, 46 F.Supp.2d at 612-13.

"In Lambert, a Los Angeles ordinance made it a crime for a convicted felon to remain in the city for more than five days without registering. Mrs. Lambert, a felon, failed to register. The Supreme Court held that the ordinance violated due process when applied to a person who had no notice of a duty to report." Emerson, id. at 612, citing Lambert, 355 U.S. at 229.

One commentator has synopsized the teaching of Lambert as follows:

The concern is [ ] whether the ordinary and ordinarily law-abiding individual would have received some signal that his or her conduct risked violation of the penal law. Punishment for conduct that the average citizen would have had no reason to avoid is unfair and constitutionally impermissible . . . . [Lambert] stands for the unacceptability in principle of imposing criminal liability where the prototypically law-abiding individual in the actor's situation would have had no reason to act otherwise.

John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 211-12 (March 1985). "Criminal liability should be disallowed (on constitutional grounds, if need be) where a law-abiding person in the actor's situation would not have had a reason to avoid the proscribed conduct." Id. at 231. In making this determination, the courts should look at "the customs of society and the sensibilities of the people -- what Holmes termed a sense of 'common social duty.'" Id. (footnote omitted). Constitutional problems arise when a person can run[] afoul of a penal statute by doing nothing out of the ordinary." Id.

In a nutshell, Lambert stands for the proposition that where society has not attached some moral opprobrium to particular conduct -- i.e., where the conduct forbidden is not "contrary to the moral code of his society," Wilson, 159 F.3d at 294 (Posner, C.J., dissenting) -- such that "a lay person would intuit that [a law against that conduct] existed," id., the Constitution bars criminal conviction for such conduct absent proof that the defendant actually knew that his conduct was in violation of law. Because § 922(g)(8) apparently does not require such proof, it is, at least under the circumstances of this case, unconstitutional under Lambert.

As presented by this case, the issue is whether a person (like Dr. Emerson) who is under a boilerplate, pro forma restraining order/injunction of the type at issue here -- issued without either a substantial showing, or a judicial finding, that the person poses a credible threat of violence to his "intimate partner" or their child -- could reasonably intuit that his ability to possess a firearm had been abrogated by the mere entry of such a boilerplate, pro forma order. (39) The answer to that question must be a resounding "No."

First off, it must be noted that there is no moral opprobrium attached to the possession of firearms per