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.
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".
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.
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
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.
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.
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.
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.
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.
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.
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.
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?
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:
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.
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