Posted on 10/16/2001 8:45:52 PM PDT by CHICAGOFARMER
Fifth Circuit APPEALS COURT CONFIRMS THAT THE SECOND AMENDMENT PROTECTS AN INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS.
The Fifth Circuit has ruled that the Second Amendment, like all other amendments (1st, 2nd, 3rd, 4th, etc) referring to ‘the people’ in our Bill of Rights, protects the right of an individual citizen to keep and bear arms, not the state. The court has smashed a cornerstone of the anti-gun house of cards.”
BELLEVUE, WASHINGTON -– In a stunning decision, the 5th Circuit Court of Appeals in New Orleans has crushed over 60 years of judicial misinterpretation and anti-gun rhetoric by finding that the Second Amendment of the U.S. Constitution protects an individual right.
While the court’s decision in U.S. v Emerson was to reverse and remand a lower court ruling that cleared Dr. Timothy Joe Emerson of a federal violation of the 1994 Domestic Violence Act, the 5th Circuit clearly ruled that the Second Amendment guarantees the right of an individual citizen to keep and bear private arms, “regardless of whether the particular individual is then actually a member of the militia.”
Writing for the majority, Judge William Garwood noted that the government’s long-standing interpretation of the 1939 Miller case, that the Second Amendment merely expresses a “collective right” is not supported by the actual Miller decision. He further noted that, “we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment.”
“This is truly a victory for firearms civil rights,” said Dave LaCourse, public affairs director for the Second Amendment Foundation. “For years, gun control extremists and constitutional revisionists have insisted that there is no individual right to keep and bear arms. We now can say with the support of the federal court that we have been right, and they have been wrong, all along.”
Acknowledging that in his dissent, Judge Robert M. Parker noted the Second Amendment right is “subject to reasonable regulation,” LaCourse stated: “No right is absolute, not freedom of speech or the press. The Constitution does not protect slander or libel, nor does it guarantee an absolute right to practice a religion that might include human or animal sacrifice. What remains to be determined, and what we will have to continue fighting over, is the definition of ‘reasonable regulation’.”
LaCourse noted, as did the majority, that Dr. Emerson has been acquitted of all state charges relating to his case, which stems from a divorce proceeding. He was charged with violating 18 U.S.C. § 922(g)(8)(C)(ii) for having a firearm while under the conditions of a civil divorce court restraining order. District Judge Sam Cummings held that this law violated Emerson’s Second Amendment right because he had not yet been convicted of any crime.
“Whether Dr. Emerson wins on the remand or appeals and carries his case ultimately to the U.S. Supreme Court,” LaCourse said, “the fact remains that the Fifth Circuit has ruled that the Second Amendment, like all other amendments referring to ‘the people’ in our Bill of Rights, protects the right of an individual citizen, not the state. The court has smashed a cornerstone of the anti-gun house of cards.”
The Second Amendment Foundation is the nation's oldest and largest tax-exempt education, research and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. SAF previously has funded successful firearms-related suits against the cities of Los Angeles, New Haven, CT, and San Francisco on behalf of American gun owners. Current projects include a damage action lawsuit against the cities suing gun makers, an amicus brief in support of the Emerson case holding that the Second Amendment is an individual right, a lawsuit against the Clinton gun and magazine ban and a lawsuit in Cincinnati supporting the right of self-defense carry of firearms.
Please visit the best Emerson webpages at http://www.saf.org.
For Immediate Release:f
Contact: Dave LaCourse (425) 454-7012
Second Amendment Foundation
12500 NE Tenth Place · Bellevue, WA 98005
(425) 454-7012, FAX (425) 451-3959 www.saf.org
October 16, 2001
However, having been lots and lots of other places, including now residing in New Hampshire (the Live Free or Die state), I feel that I should share with you that EVERYWHERE in this glorious country does - joyously - have a goodly share of real men! ~ el
Yep, I usually have my squirrel rifle in my car ....heheh.
One of the legacies of liberal SCOTUS decisions is the so called "incorporation doctrine." This is the doctrine that selected parts of the Constitution, originally written as restraints on the federal govenment, are also applicable to the individual states because of the enactment of the post-Civil War Fourteenth Amendment to the Constitution.
Most conservatives decry this doctrine. To make matters worse, it has been applied selectively. In other words it has been used only when it has helped the liberal Justices to "feel good" about their decisions, "feeling good" being the criterion for almost all liberal decision making.
Now it is my understanding that the Second Amendment has never been "incorporated", i.e., it has never been held to apply to the states. So my question is this. Will conservatives now raise the ante and take the anomalous (for them) position that the Second Amendment applies to the states via the incorporation doctrine?
I sure hope so.
This is from a message by KIM4VCWR's (former SAS Coordinator - Missouri). I think it would be a great motto for pro 2nd Amendment individuals. It says it all. Zip
Emerson has never gone to trial in this case (the court decision was to decide whether the case could even go there). As such, he has not yet been in 'single jeopardy'.
Well, here's hoping that Emerson can appeal to the Supremes on one or both of:
1 whether due process was followed; 2 whether the exclusion by the 5th of his case from coverage by the 2nd was appropriate.
On (1), I can just imagine Emerson showing up for the hearing and clamoring about the 2nd Amendment in a divorce restraining order hearing. Sure as shooting, wouldn't the judge have dismissed the argument as "irrelevant" and proceeded with issuing the restraining order with impunity, knowing there would be little reasonable expectation of a review of the order? Would it not have been "contempt of court" if Emerson had insisted?
On (2), there seems to exist a potential strategy for the Supreme Court to duck the issue of the 2nd Amendment and focus on the question of the process inversion whereby a lower-standard hearing can result in the infringement of a basic right, treating the Second Amendment issue implicitly as having already been decided (res judicata).
(IANAL...)
As a side note, the rabidly anti-gun San Jose Mercury News did not carry the Emerson Appeal decision.
Emerson should get court records from the judge who issued the restraining order against him and find out what portion of restraining order requests are granted, and whether any restraining orders have been later proven to have been unjustified (e.g. because the applicant was proven to have been lying).
If nearly 100% of such requests are granted, and any significant number are proven to have been based on perjury or other fraud, that would be pretty good grounds for showing that such hearings do not constitute any reasonable 'due process'. It may also be useful to look up state laws with respect to restraining orders to see what guidance if any they give to the judge in granting them. If the judge is instructed by law to presume that orders should be granted unless a preponderance of the evidence indicates that they should not, that too would shoot down any claim by the state that such hearings constitute 'due process'.
Probably not, each law has to struck down individually. However I would say that if you carry it concealed, you'd be on shakey ground on two counts. First the decision clearly allows for some regulation, and they point to the Miller decision, which tends to indicate that only militarily useful weapons and/or methods of bearing would be protected. Secondly the Texas Constitution does give the legislature the power to *regulate* the wearing of arms. Taken together this might eventually mean you could strap on a Barretta, M1911A1 or H&K USP, openly, but not concealed.
Want to be the test case? Unfortunatly, for reasons I only sort of understand, in general, you can't take a law to court, you have violate it and risk the penalties. There are exceptions though, and this ought to be one of them, but probably is not.
Another difficulty with regard to the First Amendment is that while it would have been reasonable to forbid Congress from passing any laws abridging freedom of speech, etc., it would be unreasonable to suppose that nobody should pass any such laws. The First Amendment, as written, applied only to Congress and could thus use language more absolute than what would have been reasonable against the states.
Unfortunately, Congress hasn't figured out what "no law" means, since it seems they keep trying to create new restrictions. While some of the restrictions in question may be prudentially reasonable, the proper way to enact them would be to pass a Constitutional amendment to give Congress the authority to do so.
The proper way to respond to the fact that people in the 18th Century never imagined the possibility of wireless communications between states would be to pass a Constitutional amendment giving Congress specific authority with regard to such communications, rather than trying to suggest that the Second Amendment doesn't really mean "no law". While some people are wary of amending the Constitution, there really aren't all that many technologies which have emerged which would merit them; I'd rather have a half-dozen more amendments to the Constitution and have courts interpret it by what it actually says, than leave the text of the Constitution as it is while courts try to figure how they think it should have been written to deal with today's world.
For example, there should be a Constitutional amendment authorizing the funding and command structure of an air force. While politicians often ignore the important distinctions the Constitution makes between the army and the navy, the air force really doesn't fit either category and thus should be authorized separately.
In the Constitution, Congress is given essentially unrestricted authority to fund the navy, but funding for the army is much more tightly restricted. There are at least two reasons I can see for this distinction:
Too bad people would rather imagine the Constitution as a "living document" than actually read what it says. Those who regard it as a "living document" would probably regard a moth-infested wool overcoat as a "living garmet".
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