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Concord Resident Petitions Supreme Court; Second Amendment
Keep and Bear Arms (Press release from the Author) ^ | 27 June 2002 | Alec S. Costerus

Posted on 07/01/2002 4:29:05 PM PDT by 45Auto

Two hundred twenty-seven years ago, British troops advanced on Concord to confiscate their arms. As we know, at the North Bridge, the embattled farmers stood to defend their freedoms and drove the British aggressors back to their fort in Boston.

More than three years ago, Concord Police Officers illegally searched the home of Concord resident Alec S. Costerus and unlawfully seized his firearms. Costerus has battled the injustice ever since. Costerus filed a petition today to the nation's highest court in his bid to have Massachusetts' discretionary gun law declared unconstitutional.

Massachusetts enacted its current gun control law in 1998. Among others, the new law requires firearms owners to obtain a license to carry - even to possess a firearm in the home, where a non-discretionary firearms identification card was formerly required. "Under the current law," Costerus says, "that requires a license in order to exercise constitutionally protected rights, one should not be subject to the standardless discretion of 351 local licensing authorities throughout the state." Ten other states also have similar so-called "may issue" statutes. "Discretionary statutes are subject to the arbitrary interpretation or the capricious abuse of discretion of licensing authorities. Worse, they are ripe for discrimination."

The Costerus v. Swift petition asks the Court to determine whether the Second Amendment guarantees an individual right to keep and bear arms, and whether the Second Amendment embodies a fundamental right made applicable to the States by the Fourteenth Amendment. Costerus also challenges the state's statute as violating both the 'Due Process' and 'Equal Protection' clauses of the Fourteenth Amendment.

Costerus acknowledges the longshot. "Only 1% of the 7,000+ cases brought to the Supreme Court are ever accepted for review." "But," he adds, "we will all lose our rights if, in the face of this aggression, whether in the form of British guns or a legislative pen, we fail to defend our rights."

If the Court grants certiorari, it will mark the first time that the Supreme Court will take a case based on direct review of the Second Amendment. "There have been other cases that discussed the 'Right to Keep and Bear Arms,' but those cases were brought to the Court primarily on other grounds."

The most recent case involved a Texas case, United States v. Emerson, in which the Fifth Circuit ruled that the Second Amendment confers an individual right. The Supreme Court denied certiorari in the Emerson case allowing the Fifth Circuit ruling to stand. "The First Circuit in my case ruled directly opposite to Emerson, so we have a circuit conflict," Costerus says. "The time is ripe for review."

Representing himself, the former two-time state shooting champion and certified firearms instructor filed a 46-count civil rights suit in October, 2000, in federal court against Concord officers for their illegal search of his home without a warrant and the seizure of his lawfully possessed firearms, in violation of his Fourth Amendment rights. His suit also seeks prospective injunctive relief against the state for enacting a statute that violates the Second, Fifth, and Fourteenth Amendments.


TOPICS: Constitution/Conservatism; US: Massachusetts
KEYWORDS: gunlicensing; rkba; unconstitutional
I haven't read the whole case, but if legitimate, it does present some interesting possibilities. Also, the article incorrectly states that the 2nd "confers" an individual RKBA; it does no such thing. Like the rest of the Bill of Rights, it merely [if such a word could be used for such an important topic]REITERATES what the Founders considered "natural, god-given and or inalienable" rights.
1 posted on 07/01/2002 4:29:06 PM PDT by 45Auto
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To: 45Auto
Well, I'd really like to see this go to the Supremes. But if only 1% of 7,000 are the odds, I won't hold my breath waiting.
2 posted on 07/01/2002 4:33:33 PM PDT by Alas Babylon!
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To: 45Auto
Better idea to wait for a few vacancies to be filled. Four solid liberals on the court, and I definitely do not trust O'Connor or Kennedy on a ruling on this.
3 posted on 07/01/2002 4:39:31 PM PDT by Fast 1975
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To: 45Auto
If this case goes to the SCOTUS, it'll be another 5 to 4 ruling in favor of the individual right to bear arms. But I won't hold my breath waiting for SCOTUS to pick it up.
4 posted on 07/01/2002 4:52:20 PM PDT by Notforprophet
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To: 45Auto
REITERATES what the Founders considered "natural, god-given and or inalienable" rights.

Most importantly, it protects those rights from Govermental infringement. Or it's supposed to, legislation and judicial rulings since about 1934 not withstanding.

5 posted on 07/01/2002 5:25:23 PM PDT by El Gato
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To: 45Auto; Alas Babylon!
Re: United States v. Emerson. If the Fifth Circuit court did indeed use the word, 'confers,' and the USSC let it stand, it seems that would serve as a basis to convey the impression that rights are indeed conferred by government , laying the groundwork for the time the government may find it advantageous to 'un-confer' a right.

If the Supreme Court had decided to hear the Emerson case, it would have had to rule in favor of the U.S. by saying the Second Amendment does not convey the right to KABA. One would hope that the court would have gone further if it did hear the case by finding that the Second Amendment guarantees that right, recognizing and confirming pre-existing rights.

I think the Costerus v. Swift petition may be unique enough to be heard, but I'm not going to hold my breath either. It's one thing that government does not want to resolve, because it wants to retain the upper hand on gun control at any cost.

6 posted on 07/01/2002 5:51:43 PM PDT by Eastbound
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To: 45Auto
Ten other states also have similar so-called "may issue" statutes. "Discretionary statutes are subject to the arbitrary interpretation or the capricious abuse of discretion of licensing authorities. Worse, they are ripe for discrimination."

What other states have horrible "may issue" statute laws for the 2nd Amendment?

7 posted on 07/01/2002 9:06:58 PM PDT by 2nd_Amendment_Defender
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To: 45Auto
IMO, this is a cleaner "test case" than Emmerson. The clear question here is the limit of State's authority to control the RKBA. I hope that SCOTUS will take take the case as I feel that it will be 5-4 in our favor. However, I would like to see at least one more of "our" judges on the bench.

I hope that the ruling determines that the State's and Fed's rights to limit arms can be no more restrictive than the right of the state to control the ownership and carry of a Bible or newspaper.

For example, owning a newspaper is fine but if you use it to start an illegal fire..... (use of a firearm to commit a crime)

Time to return some common sense to the gun issue.

8 posted on 07/02/2002 7:52:02 AM PDT by taxcontrol
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