US v Emerson

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

[Wonder Warthog]

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

One can sincerely hope that Bellesiles will soon be working down at the local car wash. Probably no real chance of that, though, as there are enough far-left universities willing to hire even a proven scholastic liar if his lies happen to uphold the "leftist ideal".

[hchutch]

It might, but only in terms of small arms. The "crowd pleasers" are not going to be covered.

But pretty much any small arm (pistol, rifle, shotgun, or machine gun) will be legal to have. The machine guns might have some tighter controls, but in general, the Brady Bunch lost a heck of a lot more than we did.

They may be able to pull something out of the Supreme Court, but between now and then, Bellesiles could be thoroughly discredited. That's only going to help our side in the arguments.

The only question is if Sarah Brady and the others will make the same screw-up that Robert E. Lee did and order a frontal assault - a political-legal Pickett's Charge.

I'm no lawyer, though. But we have a pretty big win here. We've got the high ground.

[Little-Acorn]

If you ask me (I know, you didn't, but I've got a big mouth), this decision is the best of all possible outcomes at this stage, for the gun-rights forces.

The 5th Circuit Court had no authority to overrule US v. Miller, the 1939 gun-control case that started all this silliness in a huge travesty of justice. The defense didn't even show up for that trial, so the justices had no choice but to rubber-stamp the arguments of the anti-gun prosecutors into an Opinion. And part of it said that there WERE certain circumstances where the govt could restrict gun ownership.

Since the 5th Circuit couldn't overrule it, they had to render an opinion that obeyed it.

But in this present case, since Emerson "lost", he can appeal this to the Supreme Court, who CAN overturn US v. Miller.

This outcome is the best it can possibly be for those who believe in the Constitution.

If the 5th Circuit had ruled that the Lautenberg Amendment was unconstitutional and that Emerson won, then it would be up to the Fed to appeal to the Supreme Court... and they would have dropped it like a hot potato. No way do they want a court whose majority obeys the Constitution, to decide this case.

But, since Emerson technically lost the case, it's up to HIM to appeal it. And he'll be rarin' to go. Plus, the 5th Circuit has all but written his brief for him, handing him 66 pages of arguments why the 2nd amendment means exactly what it says:

"Since a well armed and trained populace is necessary for the security of a free country, the right of ordinary people to own and carry guns shall not be taken away or restricted."

Yep, the 5th Circuit had to put a little dent in it, saying that the govt could restrict certain people. No other way could they guarantee it would go to the Supreme Court. But they left it wide open for THEMSELVES to be overruled, packing in as much pro-gun-rights material into their own written opinion at the same time.

Little-Acorn

[Dan Day]

Please correct me if wrong, but I have never seen where Emerson was convicted of anything. As I read the 5th Circuit decision, the court has allowed the indictment of Emerson to stand based on the defense presented and has sent the case back to the lower court for further proceedings, if any.

Emerson was under a temporary restraining order (issued Sept. 14, 1998) as part of an apparently messy divorce proceeding.

This is no more a violation of due process than is being temporarily held without bail if you're a suspect in a crime, or temporarily barred from leaving the state during a criminal investigation.

The problem was that instead of just riding out the restraining order, according to Texas Monthly magazine's article:

A few months later, Sacha went to Timothy's office with their four-year-old daughter to pick up an insurance payment. The couple argued, and Timothy pulled a pistol from his drawer, laid it on the desk, and asked his wife to leave. When she hesitated, he cocked the gun. Eight days later, a federal grand jury indicted Timothy Emerson for unlawfully possessing a pistol while under the restraining order, and the case of United States v. Timothy Joe Emerson moved to federal court.

The feds became involved because federal law prohibits possession of a firearm by anyone under a restraining order. Emerson had just broken federal firearms law. It is *that* act that now prohibits him from owning firearms for the rest of his life, assuming he ultimately loses his appeal after all due process.

The restraining order itself would have just been a temporary thing. Only his conviction on the federal firearms violation will be able to give him a lifelong prohibition of firearm ownership.

[hchutch]

With the acquital on state charges, I think it might not even come to that.

As for the Supreme Court, it's a tough call. A lot depends on who the four justices voting for cert are. If it's Renquist, Thomas, Scalia then we may see a good ruling. But if it's Stevens, Souter, Breyer, we are screwed.

[Double Tap]

I have to agree with you. This could be bad for us. To have your rights removed because a spouse has a restraining order placed on you is beyond terrifying.

Now there is no need to get a conviction of a felony in order to have BATF burn you out, all they need is a restaining order.

[sailor4321]

I'm no lawyer, but try this. The 14th guarantees the rights of citizens. In the Dred Scott decision, the Supremes said if they found that blacks were citizens, they could "go about armed". Since blacks have been established to be citizens, they have a right "to go about armed" (as do other citizens).

[JCG]

Chilling. One's right to keep and bear arms can be nullified by the ravings of a vengeful ex-wife. Makes me sick.

My ex-wife makes me sick, too.  But the case at hand says that Emerson aimed a Beretta handgun at his ex-wife and daughter and pulled the hammer back.  He later told the cops he owned an AK-47 which he would use to shoot her boyfriend if he got the chance.

I don't favor taking guns away just because a restraining order was obtained (most of 'em are bogus anyway), however, when some bozo does what Emerson did I'd say jail time and "de-gunning" might be in order.

[sailor4321]

That's the way I've always read Miller and I fail to understand how anyone could read it differently.

[sailor4321]

I think you're right. Note in the 5th Circuit's opinion that Emerson didn't really object to the testimony his wife gave, nor did he attempt to get the restraining order lifted. He knew that was swimming upstream....

[JCG]

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.

I disagree with you 100%.  A felon should get his rights back the same way he lost them -- via due process of law.  (US Constitution Amendment V)  Merely serving time is not sufficient.  Most states have a process one can go through to get rights restored.

[sailor4321]

And this time (if the case goes to the Supreme's), there will be a U.S. Justice Department official policy (and, presumably) and position that the right is individual, not collective!. This is a big, big victory!

[sailor4321]

I agree with you. Some will be able to win their rights back; some (Charles Manson or David Ing) will not...but it needs to be decided individually.

[AKbear]

Getting your rights back upon serving a sentence is due process. Denying rights even after completing a sentence violates due process.

The reasoning is, if I commit a crime and am found guilty of that crime and given a sentence, once I complete that sentence, due process is upheld. To continue to deny my rights because of what I _might_ do is denial of due process.

[45Auto]

This thing is much bigger than Emerson himself; a lot of people and groups both pro-and con- filed amicus briefs in this case because of the 2nd Amendment challenge put into the case by dear old Judge Cummins. The really fine job of analysis of the 2nd done by Judge Garwood and associates at the 5th Circuit constitutes a real psychological victory for the RKBA forces; since the dicta is not legally binding, and does not set anything into case law, it is difficult to see what, if any, effect this decision will have on any existing rotten gun laws. It does serve, however, as fuel for possibly several dozen new lawsuits using the dicta (can this be so used?) to challenge other unconstitutional gun laws. Like I opined in an earlier post on this thread, it will take ten years, a whole lot of money, and a dozen cases to see if this really has any meaning for the RKBA. I'm hoping it does.

[AKbear]

some (Charles Manson or David Ing) will not...

Manson is still in jail, not sure who Ing is.

This is the way to continue a felon's denial of rights, deny them parole. If someone is considered too dangerous to be out in society with a gun, then they are too dangerous to be out in society, period.

But once it is decided he is fit to be part of society, then the only just thing is to completely restore his rights. To do otherwise violates the principles of due process.

[Henrietta]

Most states have a process one can go through to get rights restored.

The prohibition against felons owning firearms is federal, and the feds don't give you these "rights" back once they have been lost. (I disagree with the premise that possessing arms is a privilege that can be lost; the right to bear arms for self defense is inalienable.)There is case in AZ right now where a firearms dealer who was convicted on trumped-up firearms violations lost his "right" to keep and bear. He tried to have them restored, and the BATF would not play along.

If you believe self defense is a "right" that can be lost to the government, then we have already lost this battle. Why don't you just turn in your guns now, and be done with it?

[writmeister]

You're right. A conflict between the circuits is usually the strongest argument to get the Supreme Court to grant certiorari and decide the issue.

[dpwiener]

The first of the spinners has spoken (VPC):
Violence Policy Center Applauds Emerson Decision, Court Upholds Protective Order Gun Ban (SPINS)

I just finished reading the 5th Circuit Court's decision, and I am very happy (no, I am not a lawyer). The fact that VPC is ignoring all the "individual rights" language, and focusing solely on the fact that the specific Emerson instance failed [barely] to meet the 2nd Amendment threshold for protection, confirms for me that it is indeed a victory for our side. In their desperate need to find a positive publicity spin, VPC has been forced to "applaud" the Court's decision. That in turn makes it extremely difficult for them to simultaneously trash the Court for its "individual rights" interpretation of the 2nd Amendment, which is what they'd be doing if Emerson's rights had been completely upheld.

Let's face it folks, we were never going to get a total hard-core absolutist 2nd Amendment victory, certainly not one which would ultimately be adopted by the U.S. Supreme Court. Even the 1st Amendment isn't given that kind of 100% absolutist protection. The Courts are governed by precedent and a strong desire not to excessively upset any applecarts, so they are no more likely to adopt a full-individual-liberty interpretation of the 2nd Amendment than they are likely to throw out decades of unconstitutional federal laws and regulations and agencies and other powers which were never enumerated in the original document.

What we got in practice was as good as we possibly could have expected, and vastly better than what I had feared:

• The 5th Circuit Court painstakingly and at enormous length examined the historical record of the 2nd Amendment and concluded unequivocably that it represented an individual right (the "Standard Model" rather than the "Collective Right" model or the "Sophisticated Collective Right" model). This is a HUGE, HUGE victory that is unappealable and can never be ignored in the future. No longer can gun-controllers claim that the judiciary has unanimously adopted the collective right/state militia interpretation of the 2nd Amendment. And no other Circuit Court has ever delved into the history of the 2nd Amendment so thoroughly or carefully. Any clash between this and other Circuit Court rulings will inevitably be to the detriment of those other rulings.
• The Miller ruling, which anti-gunners have endlessly touted as an endorsement of their viewpoint and an open invitation to any level of gun regulation or outlawing, was effectively disposed of. The 5th Circuit Court could not simply ignore or overturn that Supreme Court ruling. Instead it interpreted that ruling as applying to only certain classes of arms, and said that it did not answer nor provide guidance (except possibly in our favor) regarding the individual versus collective rights dispute.
• The 5th Circuit Court did not deal with the question of whether the 14th Amendment "incorporates" the 2nd Amendment (as it does several other Bill of Rights Amendments) in restricting state powers over firearms, because the law in question was a federal law. Nevertheless, it shores up the foundation for a future Supreme Court ruling in favor of incorporation.
• Within the boundaries of the 5th District (Texas, Louisiana, and Mississippi), any federal law regarding firearms (and there are plenty of those) is now bounded by the 2nd Amendment. Lots of laws are now on the chopping block.
• At some time in the future the U.S. Supreme Court will be forced to take a case in which the 5th Circuit has invalidated some federal law and another Circuit Court has upheld it. At that time the meticulous research that the 5th Circuit Court provided in Emerson will force the Supreme Court to adopt a similar individual rights interpretation.

No, we didn't suddenly regain our right to keep and bear arms (or more accurately had that right recognized) in one big chunk. BUT we took a GIANT step in the right direction today.

[hchutch]

I wouldn't be too sure. In some places some antiquated laws are still in effect regarding sentencing. The misuse of the right to keep and bear arms is very permanent. Someone is dead and gone, no coming back.

I submit that violent criminals (murder, manslaugter, rape, armed robbery, aggravated assault, attempted murder, attempted rape) lose their rights, and they ought to swim upstream to get them back. Particularly to vote or own a gun. They need to earn society's trust back. It's due process for the rest of us.