APPENDIX TO EMERSON

There was quite a lot of response about the U.S. v. Emerson Second Amendment case (No. 01-8780) that is under consideration for hearing before the United States Supreme Court. We wrote a little about that two weeks ago(1) and need not rehash all that here.

The government's opposition writ of certiorari was filed by Ted Olson, the Solicitor General.(2) Generally speaking, the government's reply was straightforward. They do not want the Supreme Court to hear the case because the Court will probably void a few federal gun laws in the process. Really, that's about all there is to that.

Attorney General John Ashcroft, on the other hand, has been making noises indicating that he intends to honor the original intent of the authors of our Constitution and support our Second Amendment rights. The fact is, the above mentioned brief does not necessarily support Ashcroft's contention that he intends to support our right to keep and bear arms. Rather, the brief seems strikingly ordinary in its support of government's position to maintain the status quo.

Now comes the Appendix that is receiving all the attention. It appears that the appendix was added on to the brief more or less as an afterthought. That is, rather than text written as part of the brief in Emerson, the text of the appendix seems to be a memo dated November 9, 2001 from the Attorney General to all federal prosecutors.

Because there seems to have been quite a bit of misconception as to what that "appendix" actually said, we provide it here in its entirety. In truth, this looks like it could be the beginning of a trend back to the original intent of the Founding Fathers. Even so, there would still be a long, long road to travel to get there.

Here's the text of the appendix, as it was added to the Emersion brief. You decide:

On October 16, 2001, the United States Court of Appeals for the Fifth Circuit issued its decision in United States v. Emerson. I am pleased that the decision upholds the constitutionality of 18 U.S.C. 922(g)(8) -- which prohibits violent persons who are under domestic restraining orders from possessing firearms. By taking guns out of the hands of persons whose propensity to violence is sufficient to warrant a specific restraining order, this statute helps avoid tragic episodes of domestic violence. As I have stated many times, reducing gun crime is a top priority for the Department. We will vigorously enforce and defend existing firearms laws in order to accomplish that goal.

Emerson is also noteworthy because, in upholding this statute, the Fifth Circuit undertook a scholarly and comprehensive review of the pertinent legal materials and specifically affirmed that the Second Amendment "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. . . ." The Court's opinion also makes the important point that the existence of this individual right does not mean that reasonable restrictions cannot be imposed to prevent unfit persons from possessing firearms or to restrict possession of firearms particularly suited to criminal misuse. In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment.

The Department can and will continue to defend vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws. The Department has a solemn obligation both to enforce federal law and to respect the constitutional rights guaranteed to Americans. Because it may be expected that Emerson will be raised in any number of firearms case handled by this Department, it is important that the Department carefully assess the implications of the Emerson decision and how it interacts with existing circuit precedent. Accordingly, United States Attorney's Offices should promptly advise the Criminal Division of all cases in which Second Amendment issues are raised, and coordinate all briefing in those cases with the Criminal Division and the Solicitor General's office.

As the Supreme Court has long observed, the mission of the Department "in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935). Justice is best achieved, not by making any available argument that might win a case, but by vigorously enforcing federal law in a manner that heeds the commands of the Constitution.

Generally speaking, the government's reply was straightforward. They do not want the Supreme Court to hear the case because the Court will probably void a few federal gun laws in the process. Really, that's about all there is to that.

The appendix is receiving all the attention.

"The Department can and will continue to defend vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws"

The entire appendix leads up to this one statement. 100 years of Republicrat/Demican urination on our TRUE un-infringed rights to keep and bear arms. Sorry, I won't lick the boots of these traitors just to get them to ADMIT it is an individual right.

I'll be excited when a future brief reads:

"The Department can and will continue to question vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws"

I'll be excited when a future brief reads: "The Department can and will continue to question vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws"

How about "The department recognizes that unconstitutional gun-control acts, statutes, regulations, and ordinances are not law, despite having the form and appearance of law. They are void from the moment of inception, and no government agency is bound to enforce them."
They used to tell us, "smoke 'em if you got 'em". Could you pass that one (don't bogart, that -----, my friend, pass it over, to me-e-ee...) hehehe...

"The Department can and will continue to question vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws"

Just don't hold your breath. Bubba Bush has already stated he would sign any gun law passed by Congress and sent to him,including one making the so-called Assault Weapons Ban permanent.

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