concurring in pari and concurring in the judgment.
I concur in the opinion of the court insofar as it rejects Lippman’s challenges to the district court’s jury instructions, and I concur in the judgment affirming the district court. I do not join all of the court’s discussion concerning the Second Amendment, because I would resolve Lippman’s constitutional claim on narrower grounds.
Both parties in this case agree that the Second Amendment protects the right of an individual to bear arms. Lippman ob*1045serves that a recent panel of this court, citing the Supreme Court’s decision in United States v. Miller, 307 U.S. 174, 178-79, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), said that “an individual’s right to bear arms is constitutionally protected.” United States v. Hutzell, 217 F.3d 966, 969 (8th Cir.2000). Lippman argues, therefore, that “the right protected in the Second Amendment is an individual one, not a ‘collective’ one,” and that it is “enjoyed by individuals, as opposed to states.” (Brief of Appellant at 22, 26). As explained recently by the Solicitor General, the United States also interprets Miller and the Constitution’s text and history to mean that “the Second Amendment protects the rights of individuals, including persons who are not members of any militia or engaged in military service or training, to possess and bear their own firearm, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal use.” (App. 335, Brief for the United States in Opposition to Petition for Writ of Certiorari, Emerson v. United States, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 184 (2002)). Accordingly, the government in this case relies on the district court’s alternative holding that the prohibition of 18 U.S.C. § 922(g)(8) is a narrowly tailored and reasonable restriction on an individual right to bear arms. (Brief of Appellee at 20-21).
The court rejects Lippman’s constitutional claim on the ground that under circuit precedent, the Second Amendment protects the bearing of arms only when it is “reasonably related to the maintenance of a well regulated militia.” By this phrase, the court appears to mean that the Constitution protects the right to possess and bear arms only for a member of an organized state militia or for one who is engaged in active military service or training. See United States v. Hale, 978 F.2d 1016, 1020 (8th Cir.1992); United States v. Nelsen, 859 F.2d 1318, 1320 (8th Cir.1988). Consistent with the current position of the United States, the United States Attorney has declined to rely on these precedents, heeding direction from the Attorney General that “[jjustice 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.” (App. 339, Memorandum from Attorney General Ashcroft to All United States Attorneys, Nov. 9, 2001) (citing Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)).
It is an interesting question whether a prior panel decision binds a subsequent panel if both parties believe that the precedent is incorrect and decline to invoke it. Cf. United States v. Woods, 364 F.3d 1000, 1001 (8th Cir.2004) (per curiam). I need not dwell on that conundrum here, because Lippman’s constitutional claim also fails under the more expansive interpretation of the Second Amendment advanced by the parties. I would resolve Lippman’s claim by assuming that the Second Amendment protects an individual’s right to possess a firearm, and then examining whether the restriction imposed by § 922(g)(8) is a permissible regulation of that right. For the reasons stated by the court in its alternative holding, ante at 1043-44, and by the Fifth Circuit in United States v. Emerson, 270 F.3d 203, 260-64 (5th Cir.2001), cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 184 (2002), I conclude that the prohibition on possession of a firearm by a person subject to a domestic violence restraining order is constitutional.