[Dan from Michigan]

Not a total victory, but it is something in our favor from what I've seen. Time to look it up.

[Khepera]

So when are those un-constitutional restrictions on our right to bear arms going to be lifted? When can we expect to quit needing a permit to exercise our right? When can we expect to be able to carry our weapons in New York City and in New Jersey and Ohio and Illinois? When will we be able to travel and at the same time protect ourselves and our families in all 50 states? When will we demand our rights be restored?

Oh I forgot Hell has not yet frozen over, Never Mind!

[Arthur Wildfire! March]

Oh goody. They read the entire amendment for a change. The right to bear arms, etc etc 'shall not be infringed.' No brainer really if they have the energy to read it to the end. So why is there still a blinking bullet tax???!!!! That is an infringement. Bullet sales should be immune to all sales taxes and hidden taxes. I'm not even certain if you should be able to tax capitol gains on profits generated from bullet and gun manufacturing. It would be the same as taxing a church. Churches are immune to taxes. So should gun and bullet manufacturing be immune. Our founding fathers wanted to ENCOURAGE target practice. That is the whole idea.

[Southack]

"The majority (Garwood wrote, DeMoss signed onto it) found the Second Amendment is an individual right..."

Progress.

[flamefront]

Wow!

[Don Joe]

There's another thread with some interesting comments. This looks like it has some very dramatic (as in earth-shaking) implications!

[Shooter 2.5]

Dan, since Emerson already lost his guns, he should start taking out restraining orders on every liberal he can think of. They might find out that the anti-gun hypocrites probably have gun licenses.

[68-69TonkinGulfYachtClub]

"A huge win for us!!!!"

YES!!!!

A Petition for Enforcement of the Second Amendment to the Constitution of the United States

[Torie]

It certainly sounds like dicta to me. Emerson lost because he was a bad boy.

[Charles Martel]

Bump for later reading!

[Jeff Head]

From what I have heard and read ... I don't like it.

Oh, it may well be better than them saying that the 2A is a "collective right".

They in fact say it is an individual right, but then in Emerson's case, they treat it like a "collective" right, having the collective unilaterally decide for all individuals when it is they can and cannot retain the right.

If the government can tell us that ... due to this "infraction or that infraction ... we lose the right ... then it is in effect a collective right all along. If they think Emerson is too dangerous to exercise his right, then Emerson should remain incarcerated. But given this "crime" ... which is really a statement by his ex-wife ... they know they cannot get away (just yet) with putting him away in jail.

It's double speak IMHO, that further reinforces the government position that it TELLS us when we can or cannot retain our God given rights. <p. So, while it is perhaps better than them telling us that we have no right outright (which I do not believe the government could get away with), it tells us we have the right, but that it's government's job to regulate it. That smacks of fascism. Look at Emerson if you doubt my words ... he does not have his guns, neither can he get any ... all over very lame and frivolous reasoning.

[Sandy]

It's about time! Thanks for the post. Off to read it.....

[Timm]

Not a total victory, but it is something in our favor from what I've seen. Time to look it up.

The victory is about as total as it could get in that case, actually. Yes, Emerson had his conviction upheld on appeal. However, the Court was as straightforward and unambiguous in the assertion of an individual 2A right as the SAF would have been.

Emerson is now likely to appeal to the U.S.S.C. The issue of the scope of the 2A right is now as close to being decided definitively by the USSC as it's been since Miller.

One might worry that given the Circuit's opinion the USSC-- even if it heard the case-- might well decide only the narrow issue of whether sufficient procedural guarantees were present to support the infringement of Emerson's 2A rights--even if he had any. One might worry, in other words, that the Court might now have the opportunity rule on the case without deciding the 2A issue. This possibility I think unlikely, however. The Court would have to address the 2A issue if it heard the case. In any event, the danger that the Court would hear the case but not rule on the 2A is not any more likely now than if Emerson had won and the case was appealed by the U.S.

In both cases, the possible case in which we assume Emerson won this most recent appeal and in the actual case in which he lost it, the USSC would tacitly recognize the right of Emerson to keep and bear arms if it decided only the narrow procedural question the 5th Circuit Court decided in favor of the state. There would be no reason for the Court to do this if it didn't accept the individual rights interpretation of the 2A. In fact, if the Court didn't accept the individual rights interpretation not discussing the 2A would be harmful. And, of course, if the Court did accept the individual rights model of the 2A this would be an important fact to note so that it was clear what the issue was on which the case turned. So if the Court were actually to hear the case it would surely pronounce on the 2A whether or not Emerson had won the just-released appeal.

The important thing, then, is the Circuit Court's ruling on the 2A. It's less important than what the Circuit Court ruled on the acceptability of the procedures by which the infringement of (what the Court conceded were) Emerson's constitutional rights.

It's worth noting, though, that if anything, Emerson's loss might make the case more likely to be appealed to the USSC. Notice that if Emerson had won there would be the danger that the U.S. would have decided not to appeal to the USSC at all. That would be far from impossible. As things actually are Emerson might not appeal now, but if he'll get legal support for his case he's really got nothing to lose. So I think the danger of the case ending here is less serious now than if Emerson had won.

On the other hand there is admittedly the danger that the USSC will refuse to hear the case now-- thus leaving the District Courts with conflicting precedents. I think this danger is greater now than if Emerson had won and if the U.S. appealed. Even if the USSC doesn't hear Emerson, however, the conflicting precedents will invite other lawsuits which will eventually work their way to the USSC. Of course, the future makeup of the Court would be less clear.

In the end, then, the ruling is about as good as this case could have turned out at the level of the Circuit.

[Dan from Michigan]

Look at who Parker quotes

"9. See Michael A. Bellesiles, The Second Amendment in Action, 76 Chi.-Kent L. Rev. 61 (2000); Carl T. Bogus, The History and Politics of Second Amendment Scholarship: A Primer, 76 Chi.-Kent L. Rev. 3 (2000); Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L.Rev. 309 (1998); Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5 (1989); Paul Finkelman, "A Well Regulated Militia": The Second Amendment in Historical Perspective, 76 Chi.-Kent L. Rev. 195 (2000); Steven J. Heyman, Natural Rights and the Second Amendment, 76 Chi.-Kent L. Rev. 237 (2000); H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 Chi.-Kent L. Rev. 403 (2000)."

[Rustynailww]

bttt

[Lazamataz]

BTTT!!

[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?

[hattend]

BTTT