Posted on 10/16/2001 4:07:22 PM PDT by Dan from Michigan
Violence Policy Center Applauds Emerson Decision, Court Upholds Protective Order Gun Ban
NRA-Endorsed Suit Would Have Allowed Domestic Abusers To Keep Their Guns
WASHINGTON, DC—The Violence Policy Center (VPC) today applauded the decision of the U.S. Court of Appeals for the Fifth Circuit in United States v. Emerson. In reversing a lower district court ruling, the judges rejected the argument that the Second Amendment guarantees domestic abusers an individual right to keep and bear arms and that the plaintiff, Timothy Joe Emerson, was denied due process when arrested for possessing firearms under 1994's federal Protective Order Gun Ban. The VPC is a national non-profit organization working to stop gun death and injury in America.
Mathew Nosanchuk, VPC litigation director and legislative counsel states, "Today the Fifth Circuit Court of Appeals rejected the sweeping arguments of the gun lobby that the Second Amendment guarantees domestic abusers an individual right to possess a gun. Final score: public safety, one; gun lobby and domestic abusers, zero."
Timothy Joe Emerson, a Texas resident, had been charged with violating 18 U.S.C.§ 922(g)(8), which prohibits possession of a firearm by persons under a domestic violence restraining order. Emerson's wife obtained such an order from a judge in 1998, after Emerson had acknowledged his mental instability. Two months later Emerson's wife and daughter went to his office, where Emerson pulled his Beretta pistol from his desk drawer during an argument. Emerson was subsequently indicted for illegally possessing two 9mm pistols, a semi-auto SKS assault rifle with bayonet, a semi-auto M-14 assault rifle, and an M1 carbine and tried in District Court. Emerson contended that his case should be dismissed on the grounds that the federal ban on gun possession by those under a protective order for domestic violence violated the Second Amendment. The district judge sided with Emerson and dismissed the charges.
Justice Department prosecutors then appealed the trial court's decision, stating that it directly conflicted with long-established legal precedent regarding the Second Amendment laid down by the U.S. Supreme Court in United States v. Miller [307 U.S. 174 (1939)] as well as the language of the Second Amendment itself, which speaks in terms of a limited right to keep and bear arms in connection with service in a state militia.
The Violence Policy Center missed the point. Their Second Amendment argument failed, and they must quote the minority judge!!!
And this law is not yet upheld in finality, and Emerson could appeal.
In addition, he was never accused of domestic abuse, and he was cleared of all other criminal charges. Will talk to his attorneys tomorrow.
Contrary to the spin that the "Violence Policy Center" tries to put on it, the opinion is a clear win for the Second Amendment. It contains several pages of legal and historical analysis supporting the court's conclusion that the Second Amendment protects INDIVIDUAL RIGHTS to keep and bare arms. As the opinion concludes:
We have found no historical evidence that the Second Amendment was intended to convey militia power to the states, limit the federal government's power to maintain a standing army, or applies only to members of a select militia while on active duty. All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.
We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.
We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it 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, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller.
Let them spin it any way they like, but the 5th Circuit just invalidated nearly every gun control law on the books with this decision.
L
We got a very good decision. If the Supreme Court goes ahead with this ruling or sticks with the District Judge's ruling, then it's a big win.
The Brady Bunch probably has a serious case of heartburn goin' on.
Listen to this knucklehead gloat!
Well, I can't blame him because it isn't often that gun control liberals and pedophiles win anything in court.
They lost big time, and they are trying to hide that fact.
While the decision was a loss for Mr. Emerson, for gun rights in general, it was a HUGE WIN!
LOL !!!
Dan, did you make that up?
"Perfect is the enemy of good enough." Sergei Gorshkov, CinC Soviet Navy.
Sorry, but I don't see how. What difference does it make if the court rules that the Second Amendment does indeed protect the public's rights to own of weapons suitable for military use if those same rights may be infringed without substantive due process?
Emerson has been accused of domestic violence. I have no problem believing that he was not a nice person. On the other hand, I am not aware of his ever having been convicted of anything. He was in charged with aggravated assault and child endangerment in November of 1998, but has since been acquitted of those charges.
To me, the court's acknowledgement of the Second Amendment only serves to make its decision even more dangerous than it otherwise would be. Essentially, it says that the right to keep and bear arms may only be taken away by due process, but "due process" may be met by having a hearing in which the accused is presumed guilty. What does that say about one's other "due process" rights?
Don't they mean ACCUSED domestic abusers?
So they applaud that the Second Amendment affirms the right of INDIVIDUALS to keep and bear arms! Glad to have you aboard, PVC!
In reversing a lower district court ruling, the judges rejected the argument that the Second Amendment guarantees domestic abusers an individual right to keep and bear arms........
..................but affirms the right for the rest of us.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.