To: Dan from Michigan
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.
47 posted on
10/16/2001 5:32:56 PM PDT by
greggy
To: greggy
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.
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