US v Emerson

The United States Fifth Circuit Court of Appeals ^ | 16 October 2001 | Judge Garwood

[45Auto]

The United States appeals the district court's dismissal of the indictment of Defendant-Appellee Dr. Timothy Joe Emerson (Emerson) for violating 18 U.S.C. § 922(g)(8)(C)(ii). The district court held that section 922(g)(8)(C)(ii) was unconstitutional on its face under the Second Amendment and as applied to Emerson under the Due Process Clause of the Fifth Amendment. We reverse and remand.

[Stat-boy]

"just how do they propose to go about collecting guns from more than 80 million Americans? The SOB's would be standing on the threshold of Civil War II."

Unfortunately, history tells us that this task can be accomplished if it is done one small step at a time.

[TheErnFormerlyKnownAsBig]

Sarah Brady is not going to be happy with this. Nor are Hengian, Bellesiles, ......

Bellesiles is busy trying to save his college career after that lame trash job he did and called it scholarly work.

Did you see the latest on that? His employers (don't remember the school's name) ordered him to defend his work or else. It seems not only did he use bad methods to try and create an illusion that rewrote history, but he also used the probate records from the San Francisco area that were pre great earthquake. All those records were destroyed in the subsequent fire so if you try to find them they don't exist and that accounts for the lack of probate records of gun ownership. Neat trick huh?

[freedomcrusader]

Yes, up until the 14th Amendment made the bill of rights a part of every states Constitution

It was the 14th. And, as I understand it, one of the reasons for the 14th Amendment was to allow former slaves to defend themselves because the states were trying to take away their firearms.

That said, there is no case law that I am aware of that states that the privilieges, immunities, and liberty mentioned in the 14th include the 2nd amendment.

14th amendment, part 1: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

[45Auto]

You bring up several valid points. This decision might serve as the basis for a whole bunch of new lawsuits aimed precisely at overturning those unconstitutional laws that you mention; it might be possible to finally get some uniformity to the myriad of rotten state gun laws (especially in California, New York, New Jersey, Maryland, Connecticut, etc.) the ban, register, license, etc, etc, etc. I would definitely like to see a new lawsuit aimed at overturning the rotten Cal AW bans.

[Mason]

Unfortunately, anything the court said about the right being constitutional is dicta (meaning not binding), because the same decision (a remand allowing the state to press its case against Emerson) could have been reached if the Second Amendment had not been found to apply.

It's better to have the dicta than not, but it's not very good. Whoever said Emerson should appeal is correct. Unfortunately, I doubt there's enough interest in the top court to take it. I don't trust O'Conner on this issue, or Kennedy.

[monkeyshine]

I agree with you 100%. Felons, who are finished with their time (prison + parole) should be given their rights back. There was a freeper, now deceased, who lost his rights because he had a couple of pot plants in his yard many years ago. It's absurd that he could not vote or defend himself from preying criminals because of one mistake made in his distant past.

[DugwayDuke]

"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."

I simply don't see this. A collective right is one held and exercised by a group. For your logic to be sound, it would require the denial of a right to a group simply because of their membership to that group, ie, denying RKBA to all Baptists 'cause they're Baptists.

[wcbtinman]

How do you feel about the manner in which the Miller case is cited throughout the decision?

The way I read this, if an individual can demonstrate that a particular type of weapon has a military utility (I'm thinking of a machine gun here), then the govt may not infringe the right to keep and bear that weapon.

Thoughts?

[stryker]

They have already figured that out. Take a look at the statistics. The law and order crowd (that's us) have created an environment in which the average American can be arrested just about any time he or she displeases someone with the power to arrest. Your right to own a firearm depends on such slim threads as whether your wife decides that you touched her without her consent once in your 30 year marriage and she's now tired of being married. There are some excellent books out there about the crime control establishment and how the drug war has created a monstrous industry that now must be fed with new felons every year. That means ever increasing laws, arrests, convictions, etc. And the more police you hire, the more arrests there are, and so the crime rate actually goes up, statistically speaking. In fact, crime remains a constant, varying somewhat depending upon economic conditions. What changes is how many police we have and how many laws we have and how much enforcement is put into those laws. It is a self-perpetuating, money making industry, feeding police, lawyers, judges, the prison industry, and whole towns that spring up around new prisons. At current rates, if nothing changes, I will live to see the day when 1 in 3 Americans are felons, or have some legal disability that prevents them from owning firearms. And the NRA promotes most of the laws that are passed that are making this possible. All in the name of "law and order." NO GUN CONTROL IS THE ONLY GOOD GUN CONTROL.

[freedomcrusader]

I'm glad you brought it up. After skimming the opinion, I was thinking the exact same thing. I'd love to see the Assualt Weapons ban die on the basis of Miller and this decision...

[monkeyshine]

This also kills registration and licensing, since the case can now be made that it sets up a ban. Yes, but no. It should kill registration and licensing because no right requires a license (permission) from the government. You can say what you want, print newspapers as you see fit, not talk to prosecutors or refuse to testify without a permit... so why do you need a permit to exercize the 2nd Amendment.

What they should do is set up a new system of gun purchasing whereby your fingerprint is scanned (but not saved) and checked against a database of felons. If there is no match, you can buy the weapon. If there is a match, it means you are a felon and you cannot buy it.

[Lurker]

ping....

[45Auto]

The Idiot Judge Parker cited Bellesiles' work in his "dissent"!!!see the references at the end of the decision.

[gatex]

"Yes, up until the 14th Amendment made the bill of rights a part of every states Constitution"

Two U.S. Supreme Court cases after the 14 th Amendment ruled that the Second Amendment restricts the federal govt. only (Cruikshank in 1875 and Presser in 1886).

Cruikshank also said bearing arms is not a right granted by the Second Amentdment and that the right does not depend on the Second Amendment for its existance.

[DugwayDuke]

"the cases are unanimous in holding that the term "arms" as used in constitutional provisions refers only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals."

These are the words that trouble me most. It would appear from these words that if Congress finds that a particular firearm is "commonly" used by criminals, then it might ban such weapons. One is reminded of the "so-called" "assualt weapons ban" and the number of gunazis that claimed these firearms were the "weapons of choice" for criminals. "Saturday night specials", ie, small, easily concealable" firearms might also be specifically targeted using this as a loop-hole. I would have prefered wording similar to: "uniquely used by criminals", or words to that effect. Of course the surrounding text would seem to indicate that the weapons must only have a criminal usage to be vulnerable.

[americalost]

"His employers (don't remember the school's name)

Yep.. it was Emory University. The article I read called it a stunning move on the part of the school.

[Shooter 2.5]

Thanks for reply. I didn't notice it like I should have earlier. The football player sounds like a good start. I didn't read enough of it to see if he resided in New Jersey. Since the firearm and ammo was secured it should be a good case. I think the judge will just throw it out rather than have it come to trial. If we continue to win like this and crime continues to drop, we might even see the end of the Brady Bill.

[TheErnFormerlyKnownAsBig]

Judge Parker cited that crap piece of work product by Bell.?

Must be Carter appointee.

[DugwayDuke]

Probably the best thing about this case is HCI, Saray Brady, Fienstein, etc., can no longer claim that no Federal court has ruled that the 2nd is an individual right.

[semaj]

BANG!