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Office of the Attorney General
Washington, D.C. 20530
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November 9, 2001
MEMORANDUM TO ALL UNITED STATES' ATTORNEYS
FROM: THE ATTORNEY GENERAL
SUBJECT: United States v. Emerson
On October 16, 2001, the United States Court of Appeals for the Fifth Circuit issued its decision in
United States v. Emerson I am pleased that the decision upholds the constitutionality of 18 U.S,C.
922(g)(8) - which prohibits violent persons who are under domestic restraining orders from
possessing firearms. By taking guns out of the hands of persons whose propensity to violence is
sufficient to warrant a specific restraining order, this statute helps avoid tragic episodes of domestic
violence. As I have stated many times, reducing gun crime is a top priority for the Department. We
will vigorously enforce and defend existing firearms laws in order to accomplish that goal.
Emerson is also noteworthy because, in upholding this statute, the Fifth Circuit undertook a
scholarly and comprehensive review of the pertinent legal materials and specifically affirmed that
the Second Amendment "protects the right of individuals, including those not then actually a
member of any militia or engaged in active military service or training, to privately possess and bear
their own firearms . . . . " The Court's opinion also makes the important point that the existence of
this individual right does not mean that reasonable restrictions cannot be imposed to prevent unfit
persons from possessing firearms or to restrict possession of firearms particularly suited to criminal
misuse. In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct
understanding of the Second Amendment.
The Department can and will continue to defend vigorously the constitutionality, under the Second
Amendment, of all existing federal firearms laws. The Department has a solemn obligation both to
enforce federal law and to respect the constitutional rights guaranteed to Americans. Because it may
be expected that Emerson will be raised in any number of firearms case handled by this Department,
it is important that the Department carefully assess the implications of the Emerson decision and
how it interacts with existing circuit precedent. Accordingly, United States Attorney's Offices should
promptly advise the Criminal Division of all cases in which Second Amendment issues are raised,
and coordinate all briefing in those cases with the Criminal Division and the Solicitor General's
office.
As the Supreme Court has long observed, the mission of the Department "in a criminal prosecution
is not that it shall win a case, but that justice shall be done," Berger v. United States, 295 U.S. 78,
88 (1935). Justice is best achieved, not by making any available argument that might win a case, but
by vigorously enforcing federal law in a manner that heeds the commands of the Constitution.
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