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NO. _________
In the
SUPREME COURT OF THE UNITED STATES
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TIMOTHY JOE EMERSON,
Petitioner,
v.
THE UNITED STATES OF AMERICA,
Respondent.
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On Petition for Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
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PETITION FOR WRIT OF CERTIORARI
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David M. Guinn, Jr.
Counsel of Record
Aaron R. Clements
Hurley, Reyes & Guinn
1805-13th Street
Lubbock, Texas 79401
(806) 771-0700
(806) 763-8199 fax
Attorneys for Petitioner
QUESTIONS PRESENTED
1. Did Congress exceed its Commerce Clause powers in enacting 18 U.S.C. ¤ 922(g)(8)?
2. Does 18 U.S.C. ¤ 922(g)(8) violate Dr. EmersonÕs Fifth Amendment rights to due process of law?
3. Does 18 U.S.C. ¤ 922(g)(8) unconstitutionally deprive Dr. Emerson of his rights under U.S. Const. Amend. II?
TABLE OF CONTENTS
Questions Presented .................................................................................................... ii
Table of Contents ........................................................................................................ iii
Table of Cited Authorities ............................................................................................ iv
Table of Appendices ................................................................................................... vii
Opinions Below ........................................................................................................... 1
Statement of Jurisdiction .............................................................................................. 1
Statutory Provisions Involved ...................................................................................... 2
Statement of the Case .................................................................................................. 4
a. Statement of Facts ........................................................................................ 4
b. Course of Proceedings and Disposition Below ............................................. 5
Reasons for Granting the Writ ..................................................................................... 6
I. CONGRESS EXCEEDED ITS COMMERCE CLAUSE POWERS INENACTING 18 U.S.C. ¤ 922(g)(8) ................................................................. 6
II. 18 U.S.C. ¤ 922(g)(8) VIOLATES PETITIONERÕS RIGHTS TO DUEPROCESS OF LAW UNDER THE U.S. Const. Amend. V ........................... 10
III. 18 U.S.C. ¤ 922(g)(8) UNCONSTITUTIONALLY DEPRIVESDR. EMERSON OF HIS RIGHT TO POSSESS FIREARMSPURSUANT TO U.S. Const. Amend. II. ....................................................... 13
Conclusion ................................................................................................................ 17
Appendix
TABLE OF CITED AUTHORITIES
FEDERAL CONSTITUTION & STATUTES
18 U.S.C. ¤ 922(g)(8) ................................................................................................ passim
18 U.S.C. ¤ 922(n) ...........................................................................................................
11
28 U.S.C. ¤ 1254(1) ........................................................................................................... 1U.S. Const. Art. I, ¤ 8 ..................................................................................................... 2, 6
U.S. Const. Amend. II ii, ..................................................................................................... 2
U.S. Const. Amend. V ............................................................................................. 2, 10, 12
U.S. Const. Amend. X ......................................................................................................... 2
Violent Crime Control and Law Enforcement Act, Pub. L. 103-322, ¤ 110401(c) (1994)............................................................................................................2, 6
FEDERAL CASES
Ankenbrandt v. Richards, 504 U.S. 689, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992) ........... 15
Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) ..................... 14
Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) ............................ 14
Collins v. Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) .......... 14
Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021 (1956) ................ 13
Crosby v. Foreign National Trade Council, 530 U.S. 363, 120 S.Ct. 2288 (2000) ...... 12-13
Estiverne v. La. State Bar AssÕn, 863 F.2d 371 (5th Cir. 1989) .......................................... 14
Heart of Atlanta Motel, Inc. v. United States,379 U.S. 241, 256, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) ..................................................... 7
Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957) ............. 10-11, 13
Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915 (1980) ................................................ 11
Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) ................................................................................................... 14-15
Mullane v. Central Hanover Bank & Trust Co.,339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ............................................................... 13
NLRB v. Jones & Laughlin Steel, 301 U.S. 1, 37, 57 S.Ct. 615, 624, 81 L.Ed. 893 (1937) .......................................................................................................... 7-8
Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 151 (1937) ................................. 15
Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971) .................... 8
Perry Educ. AssÕn v. Perry Local EducatorsÕ AssÕn,460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) .......................................................... 14
Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ............................... 14
Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ............................... 14
San Antonio Indep. School Dist. v. Rodriguez,411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1978) ......................................................... 15-16
Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977) ................................................................................................ 6-9, 12
Shreveport Rate Cases, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914) ........................ 8
Simms v. Simms, 175 U.S. 162, 168, 20 S.Ct. 58, 60, 44 L.Ed. 115 (1899) ...................... 15
Southern R. Co. v. United States, 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911) .................. 8
Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) ...... 11, 15
United States v. Chambers, 922 F.2d 228 (5th Cir. 1991) ................................................ 11
United States v. Darby, 312 U.S. 100, 114, 61 S.Ct. 451, 85 L.Ed. 609 (1941) ................ 7
United States v. Fox, 248 F.3d 394 (5th Cir. 2001) ......................................................... 14
United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 146 L.Ed.2d 658 (1995) ...... 7-9, 15
United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 131 L.Ed.2d 626 (2000) ....... 7-9
United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ............. 14
United States v. Wilson, 159 F.3d 280 (7th Cir. 1998) ...................................................... 13
Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956) ........... 13
LEGISLATIVE HISTORY
H.R. Conf. Rep. 103-711, p. 391 (1994), U.S.Code Cong. & Admin. News 1994, p. 1839 ............................................................... 6
OTHER SOURCES
1 St. George Tucker, BlackstoneÕs Commentaries: with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia 300 (1803) ............................................................................ 15
TABLE OF APPENDICES
A. U.S. Dist. Ct., N.D. Tex. Opinion ............................................................................. 1-33
B. U.S. Court of Appeals, Fifth Circuit Opinion ........................................................ 34-160
C. Order Denying Petitions for Rehearing ....................................................................... 161
OPINIONS BELOW
The district courtÕs opinion (Cummings, J.) dismissing the indictment in this case (Appendix pp. 1-33) is published at 46 F.Supp.2d 598. The court of appealsÕ opinion (Garwood, J., Appendix pp. 34-160) reversing the district court is published at 270 F.3d 203. The court of appealsÕ order denying rehearing and rehearing en banc (Appendix p. 161) are not otherwise published.
STATEMENT OF JURISDICTION
The Court of Appeals entered its opinion on October 16, 2001, and subsequently denied rehearing and rehearing en banc on November 30, 2001. Petitioner invokes this CourtÕs jurisdiction under 28 U.S.C. ¤ 1254(1).
STATUTORY PROVISIONS INVOLVED
U.S. Const., Art. I, ¤ 8, provides, in relevant part:
"The Congress shall have Power . . . To regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . ."
U.S. Const. Amend. II provides:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
U.S. Const. Amend. V provides, in relevant part:
"No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
The provisions of the Violent Crime Control and Law Enforcement Act of 1994, P.L. 103-322 (1994) relevant to this petition, codified at 18 U.S.C. ¤ 922(g)(8), provide as follows:
"(g) It shall be unlawful for any person Š
(8) who is subject to a court order that Š
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;Ź Ź
(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; andŹ Ź
(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; orŹ Ź
Ź (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; . . .
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
STATEMENT OF THE CASE
a. Statement of Facts
On August 28, 1998, Dr. Timothy Joe Emerson was sued for divorce by his wife, Sacha, in a state district court in Texas. At that time, Dr. Emerson was the lawful owner of approximately 30 firearms of varying types. The petition for divorce contained a standard request for temporary orders. Following a hearing at which Dr. Emerson appeared pro se, the state district court did in fact issue the requested temporary orders on September 14, 1998, which included orders that Dr. Emerson refrain from selling or otherwise disposing of any property of the marital estate as well as from the following:
"2. Threatening Petitioner [Mrs. Emerson] in person, by telephone, or in writing to take unlawful action against any person. . . .
"4. Intentionally, knowingly, or recklessly causing bodily injury to petitioner or to a child of either party.
"5. Threatening Petitioner or a child of either party with imminent bodily injury."
Neither the order nor the state judge informed Dr. Emerson of the federal consequences of that state order. Unbeknownst to Dr. Emerson at that time, the state courtÕs order made him immediately subject to the criminal penalties of 18 U.S.C. ¤ 922(g)(8).
On November 16, 1998, Sacha Emerson decided to pay a visit to her husband at his medical office. After being told to leave the premises, she refused and followed Dr. Emerson from the front waiting area back to Dr. EmersonÕs private office. Mrs. Emerson continued to refuse to leave the premises, and in response to her continued refusal to leave as well as her belligerent nature, Dr. Emerson withdrew a 9mm Beretta pistol from his desk drawer, again telling her to leave. Mrs. Emerson then left the premises, although by way of the back door of the office, rather than the way she had come.[1] Mrs. Emerson then contacted San Angelo law enforcement officials, alleging that Dr. Emerson had pointed the weapon at her and the EmersonsÕ daughter. Dr. Emerson was arrested, his firearms collection was seized, and he was charged both with the instant 18 U.S.C. ¤ 922(g)(8) violation and with aggravated assault and endangerment of a child under Texas law.[2]
b. Course of Proceedings and Disposition Below
Dr. Emerson was charged on December 8, 1998 in a five-count Indictment alleging that he violated 18 U.S.C. ¤ 922(g)(8) by unlawfully possessing "in and affecting interstate commerce" the above mentioned Beretta pistol while subject to the September 14, 1998 order. Dr. Emerson filed Motions to Dismiss on the grounds that Congress exceeded its Commerce Clause powers in enacting the statute and that the statute violates Dr. EmersonÕs rights under the U.S. Const., Amends. II, V, and X. Following an evidentiary hearing, the district court granted EmersonÕs motion and dismissed the indictment,[3] finding that 18 U.S.C. ¤ 922(g)(8) runs afoul of U.S. Const., Amends. II and V. The Government subsequently appealed, and the U.S. Court of Appeals for the Fifth Circuit, Garwood, J., reversed and remanded for trial. Dr. Emerson timely filed a Petition for Panel Rehearing and a Petition for Rehearing En Banc, which were both denied by the Court of Appeals on November 30, 2001.
REASONS FOR GRANTING THE WRIT
I. CONGRESS EXCEEDED ITS COMMERCE CLAUSE POWERS IN ENACTING 18 U.S.C. ¤ 922(g)(8)
On September 13, 1994, the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322, became effective. Section 110401(c) of that act, entitled "PROHIBITION AGAINST RECEIPT OF FIREARMS," added 18 U.S.C. ¤ 922(g)(8), which makes it a crime for a person subject to certain restraining orders to "ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." Despite the title, the statutory language added by ¤ 110401(c) criminalizes not only the receipt, but also the possession of firearms by persons subject to certain types of restraining orders. When this measure was being debated, the conference committee overseeing this legislation noted "that Congress finds with respect to this provision that domestic violence is the leading cause of injury to women in the United States between the ages of 15 and 44; firearms are used by the abuser in 7 percent of domestic violence incidents and produces an adverse effect on interstate commerce; and individuals with a history of domestic abuse should not have easy access to firearms." H.R. Conf. Rep. 103-711, p. 391 (1994), U.S. Code Cong. & Admin. News 1994, p. 1839. Congress therefore clearly enacted this statute with the intent to reduce domestic violence offenses, an area of control normally within purview of the states.
Scarborough v. United States has been a controlling influence on what is required as a nexus between possession of a firearm and commerce in order to come within CongressÕ regulatory powers under U.S. Const., Art. I, ¤ 8 (the "Commerce Clause"). 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977). Scarborough dictated that the Government must merely prove that the firearm has traveled in interstate commerce at some time in order to satisfy the nexus requirement. 431 U.S. at 577, 97 S.Ct. at 1970. This holding arose from a felon in possession of a firearm case in which the Court, in reviewing the legislative history of the statute in question in that case, concluded that "Congress sought to reach possessions [of firearms] broadly, with little concern for when the nexus with commerce occurred." Id. Despite this holding, two recent cases from this Court, United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 146 L.Ed.2d 658 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 131 L.Ed.2d 626 (2000), cast doubt on whether a firearmÕs mere passage through interstate commerce provides a sufficient nexus to bring possession of that firearm within the realm of Congressional regulation.
As this Court has noted, despite the expansive latitude given to Congress under this CourtÕs modern interpretation of the Commerce Clause, "CongressÕ regulatory authority is not without effective bounds." Morrison, 529 U.S. at 608, 120 S.Ct. at 1748 (2000) (citing Lopez, 514 U.S. at 557, 115 S.Ct. at 1629). "[T]he scope of the interstate commerce power Ōmust be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them . . . would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.Õ" Lopez at 557, 115 S.Ct. at 1628-1628, (quoting NLRB v. Jones & Laughlin Steel, 301 U.S. 1, 37, 57 S.Ct. 615, 624, 81 L.Ed. 893 (1937)). As outlined in this CourtÕs decisions in Morrison and Lopez, Congress may use the commerce power to regulate in three broad ways. "First, Congress may regulate the use of the channels of interstate commerce." Lopez at 558, 115 S.Ct. at 1629, 131 L.Ed.2d 626 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) and United States v. Darby, 312 U.S. 100, 114, 61 S.Ct. 451, 85 L.Ed. 609 (1941)). "Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, even though the threat may come only from intrastate activities." Id. (citing Shreveport Rate Cases, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914), Southern R. Co. v. United States, 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911), and Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971)). Third, "CongressÕ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce." Lopez at 558-559, 115 S.Ct. at 1629-1630 (citing Jones & Laughlin Steel, supra).
In the case before the Court, only the third category of activity is implicated by 18 U.S.C. ¤ 922(g)(8) as applied to the facts of this case. Despite the holding in Scarborough, supra, mere possession of a firearm does not use the channels of interstate commerce, nor does it threaten the instrumentalities of interstate commerce.[4] Lopez at 559, 115 S.Ct. at 1630. The question as to whether 922(g)(8)Õs reach extends beyond that allowed by the Commerce Clause, as applied to the facts of this case, therefore turns on whether possession of a firearm substantially affects interstate commerce. In deciding whether a statute is an excessive exercise of the Commerce Clause power, this Court has set forth three criteria to examine, including (1) the nature of the activity being regulated and the statutory means of accomplishing that regulation; (2) whether the statute contains a jurisdictional element which ensures, on a case by case inquiry, an appropriate nexus between the regulated activity and interstate commerce; and (3) the existence and extent of Congressional findings accompanying passage of the statute. Morrison, 529 U.S. at 610-612, 120 S.Ct. 1749-1751; Lopez, 514 U.S. at 559-564, 115 S.Ct at 1631-1632.
The statute in question in this case, 18 U.S.C. ¤ 922(g)(8), bears similarities to the statutes in both Lopez and Morrison. First, ¤ 922(g)(8) as applied to this case is a criminal statute which seeks to regulate noneconomic activity, i.e., firearm possession by one subject to a restraining order. While ¤ 922(g)(8) appears to have some connection to commerce, when read in light of Scarborough, it is apparent that the transaction being regulated itself has no connection to commerce. Second, as noted, unlike the statute in Lopez, ¤ 922(g)(8) contains a jurisdictional element with respect to a defendantÕs possession of a firearm that the possession be "in or affecting commerce." Again, however, in light of Scarborough, this jurisdictional element allows for the prosecution of activities so attenuated from interstate commerce as to render the jurisdictional element meaningless. This attenuation is precisely what led this Court to invalidate statutes in both Lopez and Morrison and leads to the conclusion that 18 U.S.C. ¤ 922(g)(8), as applied to the facts of this case, is an unconstitutional exercise of authority by Congress under the Commerce Clause. Finally, while there are congressional findings as noted, supra, in the discussion of CongressÕ enactment of ¤ 922(g)(8), these congressional findings are of the same broad "costs-of-crime" findings that were rejected in Morrison.[5] The analysis set forth in Lopez and Morrison therefore leads to the conclusion that Congress exceeded its Commerce Clause authority when its enacted 18 U.S.C. ¤ 922(g)(8), and the findings of the Court of Appeals are contrary to these decisions of this Court. This Court should therefore grant this Petition and issue a writ of certiorari to review the judgment of the Court of Appeals with respect to 18 U.S.C. ¤ 922(g)(8)Õs constitutionality under the Commerce Clause.
II. 18 U.S.C. ¤ 922(g)(8) VIOLATES PETITIONERÕS RIGHTS TO DUE PROCESS OF LAW UNDER THE U.S. Const. Amend. V
A. Lack of Notice
It is a long-established tenet of Anglo-American law that, in ordinary circumstances, ignorance of the law is no excuse for criminal conduct. With increasing numbers of statutes regulating an ever-wider myriad of activities, however, this Court has recognized that in some circumstances, criminal punishments are a violation of a citizenÕs rights to due process of law under the U.S. Const. Amend. V. See Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957).
In the case at bar, the Government seeks to punish Petitioner for his passive conduct in possessing firearms that were legally possessed until a circumstance beyond his control, the entry of a restraining order by a state district court, intervened. Lambert implicitly set forth four criteria for determining whether a criminal prosecution violates principles of due process: (1) whether the activity concerned is passive or active; (2) whether the nature of the activity is one which would ordinarily be considered blameworthy by a member of the community; (3) whether the defendant was aware of the prohibition on his activity; and (4) whether circumstances were present which should have prompted a defendant to inquire as to the legality of his conduct. 355 U.S. at 228-229, 78 S.Ct. at 243.
In this case before the Court, Petitioner was unaware of any prohibition against his possession of firearms after the entry of the September 14, 1998 order. Neither the order nor the judge who entered it admonished Dr. Emerson as to its collateral effects. Furthermore, Dr. EmersonÕs continuing possession of his firearms was a passive activity; that is, his possession of firearms continued in the same manner in which it had existed before the entry of the September 14, 1998 order, and it was the actions of a state district judge, not Dr. Emerson, which rendered Dr. EmersonÕs possession of firearms illegal.[6] Firearms ownership, as noted by the Court of Appeals and by the district court, is a legal activity that has no attachment of opprobrium. In fact, "there is a long tradition of widespread lawful gun ownership by private individuals in this country." Staples v. United States, 511 U.S. 600, 610, 114 S.Ct. 1793, 1799, 128 L.Ed.2d 608 (1994). The entry of a restraining order, unlike a felony conviction (or even a criminal conviction in general) does not effect a change in legal status that would put one on notice that oneÕs prior, legal possession of firearms may no longer be so. The entry of a restraining order does not even effect a change in legal status akin to being under indictment, yet it is perfectly acceptable for one under indictment to continue to possess arms owned lawfully prior to the indictment. 18 U.S.C. ¤ 922(n). Finally, there was no indication to Dr. Emerson that would have prompted his inquiry into whether his continuing possession of firearms might not be legal. The September 14, 1998 order made no mention of Dr. EmersonÕs possession of firearms and, in fact, specifically restrained Dr. Emerson from divesting or otherwise disposing of any property of the marital estate. As such, Dr. Emerson was perfectly justified in believing that his continued possession of firearms was not only legal, but required by the restraining order of September 14, 1998. This CourtÕs Lambert criteria are therefore satisfied by the facts of this case, and this Petition should therefore be granted to review the contrary holding of the Court of Appeals.
B. The No-Win Scenario
Once the state district judge entered the order of September 14, 1998, Dr. Emerson was placed in a position where his conduct could not be reconciled with the requirements of 18 U.S.C. ¤ 922(g)(8). On the one hand, Dr. EmersonÕs continued possession of firearms, in light of Scarborough, supra, constituted a criminal offense under that statute. On the other hand, if Dr. Emerson had attempted to divest himself of his firearms, he would similarly be guilty of an offense under the same statute by shipping or transporting his firearms in interstate commerce, as Dr. Emerson would have had to transport the firearms using public roadways (channels of interstate commerce) in order to effect the divestiture. As shipment or transportation in interstate commerce is also punishable under 18 U.S.C. ¤ 922(g)(8), that statuteÕs provisions create a situation in which it is facially impossible for a citizen who lawfully possesses firearms and subsequently becomes subject to a qualifying restraining order to conform his conduct to the requirements of law. Additionally, as applied to the facts of this case, Dr. Emerson would have been subject to the additional penalties of criminal contempt in the state district court for violating the terms of the September 14, 1998 order restraining him from divesting or disposing of any property of the marital estate.[7] Under such circumstances, the fundamental notions of justice embodied in the Fifth AmendmentÕs Due Process Clause mandate that the statute cannot stand, either facially or as applied to Dr. Emerson. For the Court of Appeals to hold otherwise is to so far depart from the normal course of judicial proceedings as to warrant this CourtÕs intervention, and this Petition should therefore be granted.
C. Denial of Property Without Due Process of Law
While 18 U.S.C. ¤ 922(g)(8) facially prohibits a person from selling firearms while subject to a qualifying restraining order, even if a person were allowed to divest himself of firearms owned lawfully before the entry of such a restraining order, such a requirement would amount to an unconstitutional deprivation of property in violation of U.S. Const., Amend. V. It has been a long-held requirement that to deprive an individual of property, an individual must be afforded a minimum level of due process; the statute in question, by automatically criminalizing the possession of firearms upon entry of a qualifying restraining order without any additional notice, fails those standards. The statute therefore runs afoul of a long history of cases which requires that notice of a hearing must fairly apprise a party of the nature of a hearing "before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for a mere failure to act." Lambert at 228, 78 S.Ct. at 243 (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021 (1956), and Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956)); see also United States v. Wilson, 159 F.3d 280 (7th Cir. 1998) (Posner, C.J., dissenting). As such, the opinion of the Court of Appeals holding otherwise so far departs from the accepted and usual course of judicial proceedings as to warrant this CourtÕs intervention, and this Petition should be granted.
III. 18 U.S.C. ¤ 922(g)(8) UNCONSTITUTIONALLY DEPRIVES DR. EMERSON OF HIS RIGHT TO POSSESS FIREARMS PURSUANT TO U.S. Const. Amend. II.
Both the district court and the Court of Appeals determined that U.S. Const., Amend. II ("Second Amendment") guarantees an individualÕs right to keep and bear arms. This is an important question of federal law which has never been settled by this Court, and the decisions of both the district court and the Court of Appeals are in conflict with other circuits with respect to this question. Petitioner, however, does not challenge these holdings. Petitioner believes that the analysis of the district court and the analysis of the Court of Appeals, to the extent that the latter found the Second Amendment to guarantee an individual right, are correct, and Petitioner adopts those analyses. However, Petitioner believes that the analysis of the Court of Appeals with respect to whether 18 U.S.C. ¤ 922(g)(8) infringes upon that Second Amendment right is flawed. Petitioner submits that the analysis of the Court of Appeals applies the incorrect standard for determining whether a statute infringes upon a right of Constitutional magnitude as set forth by this Court. Insofar as no other circuit has even held the Second Amendment to guarantee an individual right, the opinion of the Court of Appeals is in direct conflict with other Courts of Appeals, and this is an important issue of constitutional law that has not been, but should be settled by this Court.
It has long been the case that when a fundamental right has been trod upon by legislative enactment, either by a State or by Congress, the federal judiciary will subject such an enactment to strict scrutiny, allowing the statute to stand only if: (1) it is narrowly tailored, and (2) serves a compelling governmental interest. Perry Educ. AssÕn v. Perry Local EducatorsÕ AssÕn, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (First Amendment); Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (First Amendment); United States v. Fox, 248 F.3d 394 (5th Cir. 2001) (First Amendment); Estiverne v. La. State Bar AssÕn, 863 F.2d 371 (5th Cir. 1989) (First Amendment); Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (Fifth Amendment); Collins v. Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (Fifth and Fourteenth Amendments); United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (Fifth Amendment); Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Fifth and Fourteenth Amendments); Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (Fourteenth Amendment). A right is considered to be fundamental when its source, either direct or indirect, is the Constitution. Plyler v. Doe, 457 U.S. 202, 217 n. 15, 102 S.Ct. 2382, 2395 n. 15, 72 L.Ed.2d 786 (1982); San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct. 1278, 1296-1297, 36 L.Ed.2d 16 (1978). A fundamental right has also been characterized as one "deeply rooted in this NationÕs history and tradition." Moore, 431 U.S. at 503, 97 S.Ct. at 1937.[8] As noted supra, "there is a long tradition of widespread lawful gun ownership by private individuals in this country." Staples, 511 U.S. at 610, 114 S.Ct. at 1799.
In the case at bar, the Court of Appeals properly found that the Second Amendment protects an individual right, but despite the Constitutional origin of the right, did not thereupon subject 18 U.S.C. ¤ 922(g)(8) to strict scrutiny. The Court of Appeals instead applied a "reasonable restriction" standard that appears to be akin to the "rational basis" standard applied to statutes that restrict non-fundamental rights. Appendix at p. 136. As such, the Court of Appeals has applied the incorrect standard of review in direct conflict with prior decisions of this Court.
In this case, 18 U.S.C. ¤ 922 (g)(8) is unsupported by a compelling interest of the Federal government. While this statute appears to be directed to the goal of preventing domestic violence, this is not an area within the Federal governmentÕs purview. Domestic relations is an area traditionally left to the States. Ankenbrandt v. Richards, 504 U.S. 689, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992); Simms v. Simms, 175 U.S. 162, 168, 20 S.Ct. 58, 60, 44 L.Ed. 115 (1899). Lopez, supra, also notes that among the areas of regulation typically left to the states are "family law (including marriage, divorce, and child custody)." 514 U.S. at 564, 115 S.Ct. at 1632. Without a compelling Federal interest supporting 18 U.S.C. ¤ 922(g)(8), it must fail Constitutional muster as an infringement of the Second Amendment.
Even if the prevention of domestic violence is an interest that may compel the Federal government to act, the enactment before the Court is not narrowly tailored to that purpose. 18 U.S.C. ¤ 922 (g)(8) purports to deprive a person made subject to a court order meeting its criteria of that personÕs Second Amendment rights not only to receive a firearm, but to possess, ship, or transport one as well. If a person finds himself in a state domestic relations dispute in which an order meeting the criteria of ¤ 922(g)(8) could possibly be issued, the only way that person may be sure to avoid criminal liability is to divest himself of any firearms he may possess before such a hearing; otherwise, that person becomes a federal felon under ¤ 922(g)(8) as soon as the relevant order is signed. Because of this necessity to rid oneself of all firearms before a domestic relations hearing of this nature, ¤ 922(g)(8) is not narrowly tailored and instead unconstitutionally chills the free exercise of citizensÕ Second Amendment rights. Petitioner therefore respectfully submits that the Court, upon application of the strict scrutiny standard, should determine that 18 U.S.C. ¤ 922(g)(8) fails Constitutional muster and affirm the judgment of the district court.
CONCLUSION
For the foregoing reasons, this petition for writ of certiorari should be granted.
Respectfully submitted,
_________________________________
DAVID M. GUINN, JR.
Counsel of Record
Tex. SBN 16794680
_________________________________
AARON R. CLEMENTS
Tex. SBN 00795861
Hurley, Reyes & Guinn
1805-13th Street
Lubbock, Texas 79401
(806) 771-0700
(806) 763-8199 fax
1. To leave by the back door rather than the front, Mrs. Emerson had to pass by Dr. Emerson, which is hardly behavior one would expect from a spouse frightened of a domestic assault.
2. Following a jury trial, Dr. Emerson was acquitted of all charges in the Texas prosecution. State v. Emerson, Cause No. A-00-0011-S, in the 51st District Court of Tom Green County, Texas (unreported).
3. The Government itself moved to dismiss counts 2 through 5 of the indictment, which motion was granted, leaving Dr. Emerson's possession of his Beretta pistol on November 16, 1998 as the sole remaining count of the indictment.
4. While it is credible that shipment, transportation, and receipt of a firearm in interstate commerce by definition involves the use of channels of interstate commerce, the indictment in the case before the Court only charged Dr. Emerson's possession of a firearm.
5. It is worth noting that Morrison invalidated a portion of the same bill which added 18 U.S.C. ¤ 922(g)(8).
6. The Court of Appeals has, furthermore, decided that the state collateral order may not be challenged in a ¤ 922(g)(8) prosecution, citing Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915 (1980) and United States v. Chambers, 922 F.2d 228 (5th Cir. 1991). Both Lewis and Chambers are distinguishable, however, because both of those cases involved defendants engaged in the affirmative act of receiving a firearm. Dr. Emerson, on the other hand, merely possessed his weapons prior to the entry of the restraining order.
7. Under such circumstances, we are forced to the conclusion that 18 U.S.C. ¤ 922(g)(8) mandates preemption of the very restraining order giving rise to the statute's jurisdiction. Crosby v. Foreign National Trade Council, 530 U.S. 363, 120 S.Ct. 2288 (2000).
8. A fundamental right has also been described as one "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 151 (1937). The right of individuals to keep and bear arms has been described as "the true palladium of liberty." 1 ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA 300 (1803).