Explore The NRA Universe Of Websites

APPEARS IN Legal & Legislation

NRA`s Friend Of The Court Brief In U.S. V. Emerson

Tuesday, February 15, 2000

__________________

No. 99-10331
__________________

IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________

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
__________________

BRIEF SUPPORTING APPELLEE OF AMICUS CURIAE
NATIONAL RIFLE ASSOCIATION OF AMERICA
__________________

Of Counsel:
Professor Nicholas J. Johnson
140 W. 62nd Street, Room 226
New York, N.Y. 10023
(212) 636-6983

Robert Dowlut
11250 Waples Mill Rd. 6N (NRA)
Fairfax, VA 22030-7400
(703) 267-1254
Fax (703) 267-3985
Counsel for Amicus Curiae



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, ) Appeal Numbers 99-10331

Plaintiff-Appellant


v.

) Appeal from U.S. District Court, Northern
) District of Texas
) San Angelo Division
) Criminal No. 6:98CR103C
) Honorable Sam R. Cummings

Defendant-Appellee
TIMOTHY JOE EMERSON,

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record for amicus curiae National Rifle Association of America (NRA) certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.

Plaintiff-Appellant-Cross Appellee:

United States of America

Represented by:

William Bryan Mateja
U. S. Attorney`s Office
1205 Texas Avenue, 7th Floor
Lubbock, Texas 79401

Defendant-Appellee-Cross Appellant:

Timothy Joe Emerson

Represented by:

Timothy Crooks
Federal Public Defender
600 Texas Street, Suite 100
Fort Worth, Texas 76102-4612

Amicus Curiae:
National Rifle Association of America is a New York not-for-profit corporation. It has not issued stock or debt securities to the public. It is recognized by the Internal Revenue Service as a 26 U.S.C. Sec. 501(c)(4) entity.

Represented by:

Robert Dowlut
11250 Waples Mill Rd., 6N (NRA)
Fairfax, Virginia 22030-7400
Attorney for Amicus Curiae

Respectfully submitted,

________________________________
Robert Dowlut
Attorney for Amicus Curiae NRA

TABLE OF CONTENTS

Certificate of Interested Persons

Table of Authorities

Statement of Interest and Identity of Amicus Curiae National Rifle Association of America

Summary of Argument

Argument

I. The Second Amendment protects the fundamental, individual right to keep and bear arms

A. The text and history of the Second Amendment are consistent and unambiguous

B. The right to keep and bear arms continues to serve its constitutional purpose in contemporary America

II. Supreme Court precedent does not support the constitutionality of the government`s attempted application of section 922(g)(8)

A. The Miller decision

B. Miller accepted the individual right interpretation of the Second Amendment

C. Miller`s holding applies only to weapons peculiarly adapted to criminal purposes

III. The Fifth Circuit precedents cited by the government do not address the issue in this case

IV. Precedent from other circuits provide no persuasive reason to accept the government`s attempted application of Sec. 922(g)(8)

A. The "states` right" theory should not be adopted by this Court

B. This Court should not adopt an interpretation of Miller that renders the Second Amendment a dead letter

Conclusion

Certificate of Service

Certificate of Compliance

TABLE OF AUTHORITIES

Cases

Aymette v. State, 21 Tenn. (2 Hum.) 154 (1840)
Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943)

DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989)

Duncan v. Louisiana, 391 U.S. 145 (1968)
Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999)
Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), cert. denied, 519 U.S. 912 (1996)
Lewis v. United States, 445 U.S. 55 (1980)
Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995), cert. denied, 516 U.S. 813 (1995)
Presser v. Illinois, 116 U.S. 252 (1886)
Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983)

Saenz v. Heldenfels Brothers, Inc., 183 F.3d 389 (5th Cir. 1999)
United States v. Bass, 404 U.S. 336 (1971)
United States v. Cruikshank, 92 U.S. 542 (1875)

v

United States v. Friel, 1 F.3d 1231 (1st Cir. 1993)
United States v. Hale, 978 F.2d 1016 (8th Cir. 1992) cert. denied, 507 U.S. 997 (1993)
United States v. Johnson
, 497 F.2d 548 (4th Cir. 1974)
United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971)
United States v. Miller, 307 U.S. 174 (1939)
United States v. Oakes, 564 F.2d 384 (10th Cir. 1977) cert. denied, 435 U.S. 926 (1978)

United States v. Rybar, 103 F.3d 273 (3d Cir. 1996) cert. denied, 118 S. Ct. 46 (1997)
United States v. Stevens, 440 F.2d 144 (6th Cir. 1971)
United States v. Toner, 728 F.2d 115 (2d Cir. 1984)
United States v. Tot, 131 F.2d 261 (3rd Cir. 1942), rev`d on other grounds, 319 U.S. 463 (1943)

United States v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied 426 U.S. 948 (1976)

United States v. Williams, 446 F.2d 486 (5th Cir. 1971)
United States v. Wright, 117 F.3d 1265 (11th Cir. 1997), cert. denied, 118 S. Ct. 584 (1997)

Constitutional and Statutory Provisions

10 U.S.C. Sec. 311

18 U.S.C. Sec. 922(g)(8)

Act of May 8, 1792, ch. 33, 1 Stat. 271

Articles of Confederation art. VI, para. 4

U.S. Const. art. I, Sec. 8, cl. 16

Other Authorities

William Blackstone, Commentaries (St. George Tucker ed. 1803)

Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America (2d ed. 1891)

3 J. Elliot, Debates in the Several State Conventions 45 (2d ed. 1836)

3 J. Elliot, Debates in the Several State Conventions 425 (3d ed. 1937)

Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Georgetown L.J. 309 (1991)

2 Max Farrand, The Records of the Federal Convention (1911)

The Federalist (C. Rossiter ed., 1961)

Don B. Kates, The Second Amendment and the Ideology of Self-Protection, 9 Const. Commentary 87 (1992)

Gary Kleck, Targeting Guns: Firearms and their Control (Aldine de Gruyter 1997)

Gary Kleck & Marc Gertz, Ar

TRENDING NOW
Virginia: Gun Bill Updates As Crossover Deadline Arrives

Tuesday, February 17, 2026

Virginia: Gun Bill Updates As Crossover Deadline Arrives

Today, February 17th is the legislative crossover deadline in Virginia, and any bills that have not left their chamber of origin by the end of the day are considered dead for the session.

New Mexico Legislature Adjourns!

Thursday, February 19, 2026

New Mexico Legislature Adjourns!

Today at noon, the New Mexico legislature adjourned sine die from the 2026 legislative session. Despite efforts by anti-gun advocates, Second Amendment supporters were able to engage and help prevent two radical anti-gun proposals from ...

Virginia Gun Owners Face Magazine Confiscation!

Monday, February 2, 2026

Virginia Gun Owners Face Magazine Confiscation!

Astute Virginia gun owners anticipated terrible gun control legislation from the 2026 General Assembly. Still, some may be shocked to learn that anti-rights zealots in the Virginia Senate have advanced a bill to CONFISCATE standard capacity firearm ...

Minnesota: Hearing on Semi-Auto and Magazine Bans Next Week

Friday, February 20, 2026

Minnesota: Hearing on Semi-Auto and Magazine Bans Next Week

On Tuesday, February 24th, the House Public Safety Finance and Policy committee will hold a hearing on two all-encompassing ban bills, House File 3433 and House File 3402

VA Announces End To Policy that Strips the Second Amendment Rights of Veterans

News  

Tuesday, February 17, 2026

VA Announces End To Policy that Strips the Second Amendment Rights of Veterans

Today, the Department of Veterans Affairs (VA) announced that the VA will no longer report veterans to the FBI’s National Instant Criminal Background Check System (NICS) solely because they have been assigned a fiduciary to assist them ...

North Carolina: Permitless Carry Veto Override Vote Postponed

Tuesday, January 13, 2026

North Carolina: Permitless Carry Veto Override Vote Postponed

Today, the North Carolina House of Representatives rescheduled this morning’s veto override on Senate Bill 50, Freedom to Carry NC, to February 9, 2026.

Oregon: Legal and Policy Concerns Ignored as Ballot Measure 114 Implementation Bill Advances

Tuesday, February 17, 2026

Oregon: Legal and Policy Concerns Ignored as Ballot Measure 114 Implementation Bill Advances

Yesterday, the House Judiciary Committee held a work session to “fix” the extremely flawed gun control Ballot Measure 114, where it was advanced out of the committee. 

“Violence Interrupters” Demonstrate Wishful Thinking is Not Crime Control

News  

Tuesday, February 17, 2026

“Violence Interrupters” Demonstrate Wishful Thinking is Not Crime Control

Not too long ago, Illinois Governor JB Pritzker dismissed President Donald Trump’s assessment of over-the-top violent crime in Chicago as being rooted in “lies,” saying that “civilian law enforcement is how you fight crime,” and “[w]e’ve got ...

Virginia: Multiple Gun Control Bills Advance in Senate

Tuesday, January 27, 2026

Virginia: Multiple Gun Control Bills Advance in Senate

On Monday, January 26th, the Senate Courts of Justice Committee advanced a slate of gun control bills targeting semi-automatic firearms, standard capacity magazines, carry rights, home storage, and more.

Washington: 3D Printing Ban Passes House

Tuesday, February 17, 2026

Washington: 3D Printing Ban Passes House

Last night, the House passed House Bill 2320, the 3D printing ban. An amendment to the bill was approved, and the 1st substitute bill will be transmitted to the Senate for further consideration. 

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.