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.
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.
Bravo, good post. Good to see someone's thinking on this thread.
Quit teasing us!
Yeah, but as it stands now you don't have to be a violent criminal to not be able to own a firearm. All it rakes is conviction for ANY crime where the punishment may be one year or more in prison, whether you received a prison sentence of a year or more or not.
I find it interesting that the original District court would devote so much research to this issue. Even more interesting is that the Circuit court has now extended, revised, and made more compelling this research. It's almost as if someone wants this to become an issue. Perhaps the courts have come to realize that it is time for them to rule.
I'm no lawyer; in fact I am a legal "idiot". So please excuse my ignorance: WHY?
--Boris
Second Amendment Foundation
12500 NE Tenth Place " Bellevue, WA 98005
(425) 454-7012 FAX (425) 451-3959 www.saf.org
APPEALS COURT CONFIRMS THAT
SECOND AMENDMENT PROTECTS AN INDIVIDUAL RIGHT For Immediate Release: Contact: Dave LaCourse (425) 454-7012BELLEVUE, WA - In a stunning decision, the 5th Circuit Court of Appeals in New Orleans has crushed over 60 years of judicial misinterpretation and anti-gun rhetoric by finding that the Second Amendment of the U.S. Constitution protects an individual right.
While the court's decision in U.S. v Emerson was to reverse and remand a lower court ruling that cleared Dr. Timothy Joe Emerson of a federal violation of the 1994 Domestic Violence Act, the 5th Circuit clearly ruled that the Second Amendment guarantees the right of an individual citizen to keep and bear private arms, "regardless of whether the particular individual is then actually a member of the militia."
Writing for the majority, Judge William Garwood noted that the government's long-standing interpretation of the 1939 Miller case, that the Second Amendment merely expresses a "collective right" is not supported by the actual Miller decision. He further noted that, "we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment."
"This is truly a victory for firearms civil rights," said Dave LaCourse, public affairs director for the Second Amendment Foundation. "For years, gun control extremists and constitutional revisionists have insisted that there is no individual right to keep and bear arms. We now can say with the support of the federal court that we have been right, and they have been wrong, all along."
Acknowledging that in his dissent, Judge Robert M. Parker noted the Second Amendment right is "subject to reasonable regulation," LaCourse stated: "No right is absolute, not freedom of speech or the press. The Constitution does not protect slander or libel, nor does it guarantee an absolute right to practice a religion that might include human or animal sacrifice. What remains to be determined, and what we will have to continue fighting over, is the definition of 'reasonable regulation'."
LaCourse noted, as did the majority, that Dr. Emerson has been acquitted of all state charges relating to his case, which stems from a divorce proceeding. He was charged with violating 18 U.S.C. § 922(g)(8)(C)(ii) for having a firearm while under the conditions of a civil divorce court restraining order. District Judge Sam Cummings held that this law violated Emerson's Second Amendment right because he had not yet been convicted of any crime.
"Whether Dr. Emerson wins on the remand or appeals and carries his case ultimately to the U.S. Supreme Court," LaCourse said, "the fact remains that the Fifth Circuit has ruled that the Second Amendment, like all other amendments referring to 'the people' in our Bill of Rights, protects the right of an individual citizen, not the state. The court has smashed a cornerstone of the anti-gun house of cards."
The Second Amendment Foundation is the nation's oldest and largest tax-exempt education, research and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. SAF previously has funded successful firearms-related suits against the cities of Los Angeles, New Haven, CT, and San Francisco on behalf of American gun owners. Current projects include a damage action lawsuit against the cities suing gun makers, an amicus brief in support of the Emerson case holding that the Second Amendment is an individual right, a lawsuit against the Clinton gun and magazine ban and a lawsuit in Cincinnati supporting the right of self-defense carry of firearms. Please visit the best Emerson webpages at http://www.saf.org
-END-
I believe the answer to the second question is no, in that I think he bought the gun before the court order was issued. However he was charged with possesion, not buying or attempting to buy. Of course then the answer to "did he posses the gun(s) after the date of the court order" is yes.
Kinda puts the SCOTUS on the spot to step in.
The gauntlet has been thrown down, let the Bill of Rights prevail.
The frivolous answer is that these days anyone can sue for anything. But no, this ruling provides you with no immediate relief in New York. In the long run (another decade), after the U.S. Supreme Court has visited the issue, it may help you.
Learn what due process is and then come back to the debate. You don't get to make it up as you go along.
But then again, it also said the exact same thing about the first amendment right of assembly.
The late 19th century courts pulled a fast one, and the 20th century courts got cute in getting around it. The 19th Century courts basically through out the 14th amendment, on the basis that the rights mentioned in the Bill of Rights were not created by it nor dependent upon it for their existance. Then in the 20th Century the jurists took it upon themselves to decide which rights were "incorporated" not as privelidges or immunities, but under the due process clause of the 14th amendment, thus setting themsleves up as the arbitrator of which rights were to favored by "incorporation". Needless to say they weren't overly fond of the right to keep and bear arms.
Missouri Revised Statutes
Chapter 571
Weapons Offenses
Section 571.070
August 28, 2000
Possession of concealable firearm unlawful for certain persons --penalty.
571.070. 1. A person commits the crime of unlawful possession of a concealable firearm if he has any
concealable firearm in his possession and:
(1) He has pled guilty to or has been convicted of a dangerous felony, as defined in section 556.061, RSMo, or
of an attempt to commit a dangerous felony, or of a crime under the laws of any state or of the United States
which, if committed within this state, would be a dangerous felony, or confined therefor in this state or
elsewhere during the five-year period immediately preceding the date of such possession; or
(2) He is a fugitive from justice, is habitually in an intoxicated or drugged condition, or is currently adjudged
mentally incompetent.
2. Unlawful possession of a concealable firearm is a class C felony.
(L. 1981 H.B. 296, A.L. 1982 H.B. 1201)
Well, prohibitions against felons seem to survive this ruling, and against people under restraining orders. But those are injunctions against people. Various laws against guns (gun-free zones, other places where people otherwise trusted to bear arms are not permitted to do so) would seem invalidated. Ditto restrictions on type of weapon.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.