EMERSON DECIDED - 2nd amendment individual right(SAF commentary as well)

Second Amendment Foundation ^ | Oct 15 | Dave LaCourse

[Dan from Michigan]

From an email

Hi Folks,

Bottom line is that the majority held (more than dicta as an attorney pointed out) that the Second Amendment is in fact an individual right not tied to "militia service".

A huge win for us!!!! Clinton/Gore/Reno government position rejected. But Emerson should appeal the reversal. Will contact his attorneys tomorrow. I am upset that the majority claimed that the tenth amendment issue is dead, especially since a cross appeal by Emerson was denied earlier. What more did he have to try.

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The decision is finally in. The majority (Garwood wrote, DeMoss signed onto it) found the Second Amendment is an individual right, but reversed and remanded the Emerson case. As expected, Parker in a minority opinion did not want to support the Second Amendment.

The decision is here - http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm

[Rustynailww]

bttt

[Timm]

All I've said is that the Circuit Court decision went about as well as it could have, given the available options.

Even if Emerson had won there would be significant danger that the U.S. wouldn't appeal the case. Then there would still be significant danger of the various infringements you suggest to people living in different jurisdictions.

[Lazamataz]

BTTT!!

[jcparks]

Whoa! I didn't intend for it to appear as an attack. Sorry if I conveyed that.

I was only supporting your statements with my views. I think Emerson will appeal, and hope the USSC can finally hear it. IMHO the federal "law" under which Emerson lost his ability to defend himself is illegal. As are ALL federal gun "laws".

[Hot Tabasco]

i assume that you have no problem with Charlie Manson owning a gun as soon as he gets out of the slammer.

I choose not to deal with hypotheticals nor improbables. It is unlikely your pal will not get out of the slammer in my lifetime nor yours. But if he did, he is a convicted felon and could not legally obtain a firearm. Emerson, on the other hand, is not a convicted felon.

Besides, if your friend Chuck should somehow get out, I don't think he would be too worried about obtaining a firearm "legally" anyway. He would simply do what all other repeat offenders do illegally........

And if Manson should get out of prison, you would support my disarmament while at the same time allowing him to move in next door to me?

Of course you would as long as you were on the other side of the country rather than across the street.......

[El Gato]

Nothing in the Constitution prohibits taxing churches, that is a matter of statutory law. Similarly a general sales tax that included guns and ammunition would be Constitutional, since no attempt was made to single these protected items out for "infringment", the courts have ruled thusly with regards to newsprint and ink.

The tax on ammunition and firearms is really the idea of hunters and other gun people, fisherman too as it applies to their equipemnt also, IIRC. The problem is that it actually raises money, money which Congress would rather spend bying votes than for it's original statutory purposes of protecting wildlife habit and so forth. That's the federal tax of course, YMMV depending on your state.

[greggy]

I looked at the ruling and I concluded two things: (1) the second amendment was kept vague, by saying that a right is a priviledge that the government can take away, while at the same time saying it applied to individuals, and (2) the second amendment no longer has place in this case, so it probably (by design?) remain vague. My emphasis added:

D. Second Amendment protects individual rights

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. However, because of our holding that section 922(g)(8), as applied to Emerson, does not infringe his individual rights under the Second Amendment we will not now further elaborate as to the exact scope of all Second Amendment rights.

VI. Application to Emerson

The district court held that section 922(g)(8) was unconstitutionally overbroad because it allows second amendment rights to be infringed absent any express judicial finding that the person subject to the order posed a future danger. In other words, the section 922(g)(8) threshold for deprivation of the fundamental right to keep and bear arms is too low.(61)

Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country. Indeed, Emerson does not contend, and the district court did not hold, otherwise. As we have previously noted, it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms. ...

VII. Conclusion

Error has not been demonstrated in the district court's refusal to dismiss the indictment on commerce clause grounds.

For the reasons stated, we reverse the district court's order granting the motion to dismiss the indictment under the Fifth Amendment.

We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia.(66) However, for the reasons stated, we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant's Second Amendment rights. Accordingly, we reverse the district court's dismissal of the indictment on Second Amendment grounds.

[editor-surveyor]

Can you say Baffle Gab?

[Dan from Michigan]

Unfortunatly, the Miller case causes problems. If Miller wasn't dead before SCOTUS ruled the way they did, we probably wouldn't be in the situation we are today.

It's gotta be overruled, and only SCOTUS can do that.

[greggy]

It's gotta be overruled, and only SCOTUS can do that.

I used to think that way, but now I don't care what the SCOTUS does. 200+M firearms and quickly growing since 9/11, California's vast population refusing by over 95% to register their firearms (for the second time in 10 years), I don't think the government will do anything, no matter how they rule. I think the people rule and they know it. In other words, we already told them how it is.

[El Gato]

Yes, Emerson had his conviction upheld on appeal

I don't believe he was convicted. Just as in Miller, the District court judge threw the case out on a motion by the defense. Now, absent the almost certain appeal, the district court will have to reinstate the case.

[Kevin Curry]

Were he out of said slammer, would he lose his right to speak, worship, etc?

No. But he would certainly lose his right to carry a gun. Absolutely. Completely. It is not even a close question except to idiots.

[hattend]

BTTT

[El Gato]

It is not even a close question except to idiots

I guess then most states were, until quite recently, governed by idiots. It's only since the gun control act of '68 that federal law prohibits convicted felons from keeping arms, and some states still do not, at least not all guns under all conditions. I know Texas law provided for even released felons to have arms in their homes for self defense. Of course only an idiot would not recognize the fact that a criminal, convicted or not, that wants to have a gun, knife or other weapon, will get one, regardless of any law to the contrary. All your position does is lend support for "instant" registration schemes such as that put in during the reign of the sinkmeister, it does not deprive any evil doers of weapons. Even keeping them in the slammer doesn't always manage that.

[ctdonath2]

No. But he would certainly lose his right to carry a gun. Absolutely. Completely.

But does he lose ANY of the other rights listed in the Bill Of Rights? Answer: No. He may lose proceedural rights (voting) or other gov't-granted rights, but he loses NONE of his natural God-given rights...except, as you say, his 2nd Amdendment rights. What in the Constitution permits the loss of that right but not of the other 9?

[DuncanWaring]

I stand by my original position. If he can't be trusted to carry a gun, he shouldn't be out of the slammer.

Were he, however, to be out of the slammer, would he have a right to carry a knife? A baseball bat? A tire iron? A screwdriver?

[BenR2]

No. But he would certainly lose his right to carry a gun. Absolutely. Completely. It is not even a close question except to idiots.

Your wording is intemperate and inaccurate. Many people question the automatic removal of Second Amendment rights as a result of a felony conviction.

And they are not all idiots, either.

[NonZeroSum]

I'm not a lawyer. I have to send this decision to a 2a lawyer I know.

Law Professor Glenn Reynolds has already started analyzing this at his site. His take is that it's a big win for gun rights, but the gun grabbers are spinning it (i.e., lying about it) as a win for them.

[Dan from Michigan]

Good. Reynolds is a good one. I hope our exec director(MCRGO) looks at it as well. He has a law degree.

[lawdog]

Yeah John having a 'law' to forbid Manson from getting a gun "when he get's out" would really stop him! Manson is very afraid of the law..when he murdered there was a 'law'..someone dig up Sharon Tate and company and tell them they can't be dead because there was a 'law'. All defense is ultimately self-defense.