Posted on 10/16/2001 1:00:48 PM PDT by 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.
This is because the rights enumerated in the Bill of Rights are pre-existing, inalienable rights ... the right to free speech isn't granted by the First Amendment, either - it's protected by it.
What they said in the ruling about individual rights wasn't upheld at all in what they did with Emerson. Basically, they are saying that it is an individual right, but the government will decide who can and cannot exercise it. In essence, to me, this has the consequence and impact of it being held to be a collective right. they then proceeded to reaffirm this (at least in my eyes) by how it was applied to Emerson.
Emerson does not get to have a gun.
Can't you just see the campus cop tossing Bell.'s work in the trashcan with the rest of the crime reports? Rape, burglary, work product fiction into the round file.
Correct me if I'm wrong, but don't they refrain from saying "We HOLD" for dicta? Doesn't that make it a holding and thus case law? If the fifth circuit is asked to rule on the same thing again, wouldn't they again say "individual right?"
However, how significant is this as case law outside the 5th circuit? Are other courts bound to overcome the reasoning?
Wisconsin's comment bears repeating, folks:
"...I think this decision will stand. It will move the battleground from "Is there a right?" to "Under what conditions can the right be restricted"..."
Any way you look at the Emerson appellate court ruling, Wisconsin describes that the RKBA argument between pros and antis has changed *fundamentally* in one single day.
Make of the Emerson ruling what you will, but the RKBA is stonger than it was yesterday.
HCI can't be liking this.
Violence Policy Center Applauds Emerson Decision, Court Upholds Protective Order Gun Ban (SPINS)
This is an immense victory. Nearly every gun control law on the books in the 5th Circuit has just been invalidated, including the laws against concealed carry.
Ashcroft will almost certainly appeal this to SCOTUS, and then send a trained chimp in to argue it in front of them.
Take that Governor Davis.
L
They absolutely, positively and explicitly came down in our favor like a ton of bricks. They absolutely, positively and explicitly rejected every argument in favor of the "collective right" twaddle that the anti-gunners are trying to peddle.
They weren't simply summarizing Emerson's arguments, they were affirming them, supporting them, and expanding them, using a broad amount of research and evidence from original intent and historical application.
That part of the ruling (and it makes up about 90% of the long decision) is a 100% win for our side.
I just read the ruling. Heartburn, hell, I predict several outright strokes and cases of ritual suicide.
No other circuit is bound by this reasoning; however, if another circuit is inclined to follow the reasoning set forth by the 5th Circuit (don't count on this; most appeals court judges are flaming, anti-gun collectivists) they can cite Emerson as support for their reasoning. But remember, all that language in Emerson that makes us feel hopeful is just dicta, (as opposed to a ruling that establishes legal precedent) so don't get too excited about all this. I'm cautiously optimistic that perhaps this case could help us regain some lost ground where the second amendment is concerned, but won't be the farm on it.
Speaking of which, Tench Coxe observed:
"Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."
I invite the US Senators from New York to stick that in their pipes and smoke it.
(By the way, it is encouraging to see the court cite St George Tucker and William Rawle with regard to the Second Amendment. Perhaps they will one day concur with the gentlemen’s equally sensible opinions regarding the Tenth Amendment… ;>)
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