Gag on 2nd Amendment Is City’s Aim in Guns Suit

Lawyers for Mayor Bloomberg are asking a judge to ban any reference to the Second Amendment during the upcoming trial of a gun shop owner who was sued by the city. While trials are often tightly choreographed, with lawyers routinely instructed to not tell certain facts to a jury, a gag order on a section of the Constitution would be an oddity.

“Apparently Mayor Bloomberg has a problem with both the First and the Second amendments,” Lawrence Keane, the general counsel of a firearms industry association, the National Shooting Sports Foundation, said. The trial, set to begin May 27, involves a Georgia gun shop, Adventure Outdoors, which the city alleges is responsible

Agreed. "Judges in every State shall be bound thereby" - Art 6 Para 2, US Constitution.

Denver's "home rule" statute cannot over ride the very document that makes them a State to begin with. The US Constitution is the "Supreme Law of the Land".

Colorado's Constitution even adds in an additional protection for individual RKBA and the Colorado Supreme Court has upheld it.

The Denver courts upholding this "home rule" nonsense are over stepping the limits on their power and need to be censured. Badly...

With pitchforks and torches if the US DOJ won't step in to right things...

This was a PR move by the NSSF and SAF to win in the court of public opinion to make Bloomberg even more of a bad guy than he already is. There is no free speech in a court however, especially in civil litigation cases like this one. The district judge's job (simplistic description) is to apply the law based on statute and precident and leave questions of fact to juries.

I do find it strange that a city is suing a gun shop in Georgia.

I have another question. How do all of these federal gun cases in New York end up in front of LBJ appointee Jack Weinstein who is absolutely no friend of gun owners? There's 25 judges there. Jack's a senior judge, and I'm sure he's not the only one to do civil tort cases.

One thing I learned a long time ago is that bad cases make for bad law. As a friend of mine always says, "Don't be a test case."

The DC gun ban case is pure genius. Look at that compared to Emerson. Emerson wasn't a great test case, although the decision there wasn't that bad. In the DC case, You had several great test subjects. None were criminals. One of them got through to SCOTUS. Now while justice should be blind, there is always going to be biased. The last person I want there with my case is some guy from Aryan Nations. The best is someone who protects government officials, like Dick Heller.

I need to brush up on the Stanley case. That one has been a few years ago.

Emerson wasn't a great test case, although the decision there wasn't that bad.

Which decision wasn't bad? The federal government has no authority whatsoever to do with 'domestic violence', and does the denial of RKBA without so much as an allegation of actual criminal wrongdoing is completely inconsistent with the notion of 'due process'. I'm not sure Emerson had the best lawyers, but the Lautenberg Abomination (to which the NRA turned a blind eye in 1996) is the most egregious piece of anti-Second-Amendment nonsense to date.

The federal government has no authority whatsoever to do with 'domestic violence', and does the denial of RKBA without so much as an allegation of actual criminal wrongdoing is completely inconsistent with the notion of 'due process'.

Several points, although I do not disagree with you on what should have been done. I don't know if Emerson had bad lawyers or not. You can have a poor lawyer and win, and a great lawyer and lose. I'm looking at the decision again.

1. The interstate commerce clause right now applies to pistols where they travelled. That's how Lautenberg got his toes in there. Unless you can prove that your firearm was built in the same area you lived, it went through interstate commerce. Thank the FDR court for that. The good news is the Lopez and Pritz cases have put SOME breaks on that. I don't agree with how it is with the ICC, but it will take a SCOTUS case to change that.

2. Due process was argued under Emerson, but not the part requiring a conviction before losing guns on due process grounds. (tried rule of lenity instead, which tells me there's probably bad precident there somewhere). The Due Process argued that Emerson did not know he was a "criminal" for doing what was otherwise considered lawful activity. They relied on a SCOTUS case from 57, that has been somewhat limited since then that under the notion that "ignorance of the law is no excuse." I personally hate that saying since we're all walking misdemeanors at least with all the laws out there today that are unknown and unenforced. The court used the Staples (machine gun) decision (a decision that moved us in the right direction - with only Stevens and Harry Blackmun dissenting) and distinguished it saying that all Emerson had to know to be liable is that this is the type of gun covered under the Lautenberg act, and used BATF form 4473 to let Emerson know about his ignorance. That BATF form was after Lautenberg passed, so that hurt him on that ground. I don't like anything that harms without a conviction myself, but that was probably a right decision (from what I saw) based on what was argued.

3. 10th Amendment - Abandoned by Emerson's legal team. That would not win anyway unless it goes to SCOTUS.

4. Second Amendment - It affirmed the district court, but supported the depravation of the right because of the court order.

I don't disagree with what you said, but unfortunately we're still dealing with 60 years of bad precident on gun issues (from Miller and its misreading to starting around 1994 SCOTUS where it started to change with the Staples case, albeit on other grounds than 2nd Amendment)

The Due Process argued that Emerson did not know he was a "criminal" for doing what was otherwise considered lawful activity.

That was IMHO an inferior argument, since it implicitly conceded the legitimacy of the ~~law~~ statute Emerson was accused of breaking.

The bad precedent in Miller isn't the holding itself, but rather the syllabus and the way the holding has later been interpreted. The actual holding was that for a weapon to be protected under the Second Amendment, it must by nature be suitable for use in an effective citizen army. The government's refusal to take the case to trial court after having won the right to do so suggests that it wanted to avoid the precedent that would have set.

That was IMHO an inferior argument, since it implicitly conceded the legitimacy of the law statute Emerson was accused of breaking.

It looked like a shotgun approach taken. Contrast that with Heller/Parker which was strictly 2nd Amendment.

I think Miller was bad too, but could have been much worse if FDR had his way on it. McReynolds wrote the decision, and was one of the "four horsemen" (libertarian leaning judicial activists - which unfortunately gave us lochner which let to Roe when Warren/Burger courts took over), so that was the best possible under the circumstances. I can only imagine though what would have happened if Miller's team was in court.

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