The Potowmack Institute
revised 03/19/2008

NRA v. Reno (July, 2001)
US v. Emerson PAGE
Printz and Mack PAGE
US v. Lopez PAGE

A more thorough listing of Second Amendment cases with links can be found at
Second Amendment cases, A-T, 142K.
Second Amendment cases, U-Z, 260K.

Parker and Seegars have been Completed through the DC Appeals Court.

Briefs in DC Gov. v. Heller, Appealed to the US Supreme Court, decided June, 2008

Nordyke et al. v. King was reheard after Heller opinion was released and a new revised opinion was released.

Briefs filed in Nordyke:
Supplemental Brief of Appellants (Nordykes) RE: Second Amendment Issues, Sept. 10, 2008

Appellee's (Alameda Co.) Suplemental Brief, Sept. 12, 2008

Appellee's (Alameda Co.) Brief in Reply to Supplemental Brief of Appellants, Oct. 3, 2008

Other relevant cases:
United States Supreme Court, US v. Hayes, Feb. 24, 2009

US Court of Appeals, Seventh Circuit
John Justice and Mike Woodward v. Town of Cicero, Aug. 14, 2009.

US Court of Appeals, Mandamas Order, Dissent from Mandamas Order

Briefs in the Chicago cases that the Supreme Court will hear are at

The Ninth Circuit's rehearing of Nordyke.
Also at:
was released April 20, 2009. Parker et al. v. DC Government was filed by the Cato Institute February 14, 2003, to challenge the District of Columbia's very restrictive, counter-productive, unenforceable gun law on purist Second Amendment self-defense grounds. The NRA likes to call itself a strictly gun rights organization, but its agenda is much more broadly politically. The NRA filed a parallel suit in Seegars et al. v. Ashcroft (changed to Gonzales), DC Government and tried to have the suits combined and establish its control. The attempt failed and the NRA went to Congress to try to have the law repealed so it could not be tested in court. The NRA is not a true believer. It does not want gun rights tested in court because it does not have demagogic control over federal judges who do not have to stand for election. See "Battle of the Gun Ban", Robert A. Levy and Gene Healy, Cato attorneys for Parker et al. Seegars and Parker district court oral arguments were held in October and November, 2003. Parker was suspended until there was a ruling in Seegars. The suspension was lifted in November, 2005. Seegars has been completed and the NRA's arguments were rejected, cert. denied. There was a conflict in the DC Court of Appeals between Seegars and Parker which had to be resolved either by the DC Court of Appeals en banc or the Supreme Court.

DC government repeatedly petitioned the court to dismiss Parker under the ruling of Seegars. The reason Parker proceeded is that politically motivated right wing judges wanted to give a gun rights sop to the gun lobby. The Parker panel released its opinion on March 9, 2007. This is all very political, but what is celebrated as a great gun rights victory in the Parker opinion is actually a devastating repudiation of the gun lobby and its anarchic ideology. The larger issues are very far removed from public knowledge and consciousness. Parker briefs and court documents and more comment are available at:

On September 4, 2007, the DC Gov petitioned the Supreme Court for certiorari — that is, that the Supreme Court will hear the case. The name has been changed to DC Gov. v. Heller, Sup. Ct. case no. 07-290. For comment see
Discussion on the case can be found at:

The Supreme Court released an order in November, 2007, that it would take up Parker/Heller

Oral arguments were held March 18, 2008. The text is at Audio and video are on The Potowmack Institute was not able to file to the Supreme Court but will file if the Supreme Court remands the case to the Appeals Court for further considerations. That is very likely.

Other files:
NRA's parallel suit:
Seegars et al. v. Ashcroft and Williams (changed to Gonzales and Fenty)

From the Cato Institute website:
Parker et al. v. DC Gov.

Other cases:

OCTOBER 16, 2001. US v. Emerson ruling, US Court of Appeals, Fifth Circuit

District Court opinion:
United States v. Timothy Joe Emerson, Memorandum Opinion, 3/30/99, Federal District Court, Northern District of Texas.

The Potowmack Institute's amicus curiae brief in Emerson, which raised fundamental the issues, was filed with the US Court of Appeals in US v. Emerson in August, 1999. All other briefs in Emerson are available. The only other place where the Emerson briefs were available was the Second Amendment Foundation. Second Amendment Foundation links.

The District Court's opinion in Emerson ruled in favor of a personal right to be armed outside of any state or militia purpose which leads to a right to be armed outside of any legally authorized or permitted purpose. The prosecution's brief and the amici curiae in support of the prosecution argued against this new meaning for the Second Amendment and the right of militia. The Fifth Circuit had all briefs as of January, 2000. Oral arguments were held June 13, 2000. The Fifth Circuit's appellate opinion was released October 16, 2001.

The appellate ruling included Judge Garwood's lengthy obiter dictum which fabricated the gun lobby's individual right. In the end the right meant nothing for Emerson. He was remanded back to the district court for trial and was eventually convicted.

Emerson was followed with intense interest by the gun rights militants, but the gun lobby did not win the right it wants in Emerson. Public authority is still viable. There is no right of the people to be armed outside of accountability to public authority so that sovereign individuals can maintain a balance of power between a privately armed populace and any and all government. The most recent— and most sophisticated attempt— was Emerson. It was not new. The most complete previous attempt was US v. Francis J. Warin. It is not within the powers of the judiciary to dissolve law and government and return to the State of Nature which is the state of anarchy, but the gun lobby and its libertarian allies persist.

A civil right secured by government only becomes real when a defendent is brought before a judge for violating a law enacted by a legislature. When the judge says, "How do you plea, Guilty or Not Guilty?", the accused has the opportunity to say, "Your Honor, I plea Not Guilty on the grounds that the law is unconstitutional." If the judge and higher courts agree, the defendant is out of there.

The courts up until now have been consistent that there is no constitutional protection for the gun lobby's childish political fantasy and childish concept of the political self. Even a careful reading of the expressions of Antonin Scalia and Clarence Thomas, whom the gun lobby look to for salvation, does not find support for the kind of personal right the gun lobby/libertarians want against any and all government including state government. Scalia and Thomas, consistent with rightwing/libertarian ideology, are concerned with the expansion of central/federal authority under the Commerce Clause. They don't seem to recognize any protection against regulation by the states.

Promoting gun rights is about demagoguery. Judge Garwood's gratuitous dicta was a very reprehensible politicization of the federal judiciary to further a partisan political agenda.

DECEMBER 5, 2002. Silveira v. Lockyer ruling

The US Court of Appeals, Ninth Circuit, in Silveira v. Lockyer was a counter politicization.

Like Judge Parker in Emerson, Judge Magill in Silveira objects to the unnecessary arguments. If the 5th Circuit has politicized the judiciary then the 9th Circuit has offered a counter politicization. The substantive debate and discussion have not been taken up in the political arena, in the news media, or among the falsely polarized advocates so the burden of responsibility might just as well fall on the courts. The courts, however, have not yet gotten at the fundamental relationship between citizen and state, between the individual and political community. We put the issue before the Fifth Circuit in our amicus curiae brief in US v. Emerson.
We will put in before the court again in our amicus in Parker.

En banc opinion, May 6, 2003, denying further hearing of Silveira with lengthy dissents:$file/0115098o.pdf?openelement

In the Silveira opinion Judge Reinhardt stated that: "In any event, as we will explain infra at 32, 45-47, 53-55, it is clear that the drafters believed the militia that provides the best security for a free state to be the permanent state militia, not some amorphous body of the people as a whole, or whatever random and informal collection of armed individuals may from time to time appear on the scene for one purpose or another."

The dissenting judges in the denial of a rehearing stated that that was exactly what the right to keep and bear arms is about. When federal judges start preaching the Gun Lobby's version of the Marxist-Leninist theory of anarchy, it is about time the people start paying attention.

FEBRUARY 18, 2003. Nordyke v. King ruling

Judge Gould adds more confused obiter dicta.

A more thorough listing of Second Amendment cases with links can be found at
Second Amendment cases, A-T, 142K.
Second Amendment cases, U-Z, 260K.

J. Norman Heath, "Exposing the Second Amendment: Federal Premption of State Militia Legislation," University of Detroit Mercy Law Review (2001) Discusses
Houston v. Moore(1820)
Martin v. Mott(1827)
Perpich v. Dept. of Defense (1990)
Luther v. Borden(1849)
and other cases.

The Commerce Clause

Early Militia/"Bear Arms" Cases

The Case of Secession

Contemporary Second Amendment Cases

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