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

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.


TOPICS: Announcements; Constitution/Conservatism
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To: EricOKC
Correct me if i am wrong, but, felons dont have rights.

Ok, you're wrong.

Felons do have rights, even while in prison. That's why you can't murder one and get off scott free, why they can't be used as slave labor, why they can sue for better conditions, new trials, etc.

On the other hand, certain of their rights can be curtailed of necessity (like the right to walk around free) or as a prudent part of their punishment (like the right to vote).

But that's not the same as them having no rights at all.

That being the case, how, exactly, could they legally possess a firearm in prison?

XJarhead wasn't saying that they did. Read his post again. He explicitly said that felons' rights *could* be reasonably curtailed. His comment about "possessing a firearm in prison" was used to show how an absolute position on rights would lead to absurd results.

181 posted on 10/16/2001 7:07:43 PM PDT by Dan Day
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To: NovemberCharlie
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.

Almost, but not quite.

This ruling does not itself "invalidate" any law. But it sure as hell provides a very sturdy foundation for direct challenges to gun laws which *would* invalidate them.

For example, using this decision as a basis, it would now probably be a slam dunk to challenge the 1994 so-called "assault weapon" ban, at least within the Fifth Circuit, and up to the level of the same level as the recent decision.

And *that* victory is one that would then undoubtedly be appealed up to the Supreme Court.

182 posted on 10/16/2001 7:17:07 PM PDT by Dan Day
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To: Shooter 2.5
Henrietta, Does Emerson get his guns back after the restraining order is removed?

I haven't seen that one answered yet, so I'll take it.

The answer is that he would have if he had just sat tight and waited for it to expire.

However, he used a gun in a threatening manner while the restraining order was in effect, thereby committing an actual crime, which he is in the process of getting a final conviction for in federal court. *That* is the act that is probably going to prevent him from ever again owning a firearm, unless his lawyer can pull a rabbit out of the hat during the remand process (or unless the federal prohibition in question is eventually repealted or overturned).

183 posted on 10/16/2001 7:19:44 PM PDT by Dan Day
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Comment #184 Removed by Moderator

To: NovemberCharlie
Ditto restrictions on type of weapon

Well, probably not, since the decision allows, as it had to, for Miller type restrictions, whatever those might prove to be. Short barrelled shotguns perhaps. Although Miller would seem to allow for possession of any militarily signifigent weapon, and as "Cases" from the first Circuit indicates, it would be hard to find a weapon that wasn't used by some military or resistance (i.e. militia) group somewhere sometime. (Including short barrelled shotguns of course). "Cases" was of course the first of the "collective rights" decisions, in that it required the weapon in question be actually used or intended to be used in militia service, the 5th Circuit obviously does not agree.

185 posted on 10/16/2001 7:23:24 PM PDT by El Gato
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To: JCG
Many states have restrictions on felons in possession also. But they are not uniform accross the states. Texas statutes provide, or did last I checked, for convicted felons to own long guns and keep them in their home for self defense. The federal law at issue in this case in effect over rode all those state laws, unless the state law was more restrictive of course.
186 posted on 10/16/2001 7:26:03 PM PDT by El Gato
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To: Dan Day
However, he used a gun in a threatening manner while the restraining order was in effect, thereby committing an actual crime, which he is in the process of getting a final conviction for in federal court. *That* is the act that is probably going to prevent him from ever again owning a firearm, unless his lawyer can pull a rabbit out of the hat during the remand process (or unless the federal prohibition in question is eventually repealted or overturned).

Incorrect. He was tried for reckless endangerment in a state court for that incident, and was found not guilty. However, the federal court can still convict him for possession of a gun while under the restraining order, and that would prohibit him from owning a gun in the future.

187 posted on 10/16/2001 7:29:22 PM PDT by NovemberCharlie
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To: Dan Day
he used a gun in a threatening manner while the restraining order was in effect

Actually he was accused of doing that, but was aquited on all charges, including that one. The federal case stems from mere possession of the gun(s), whether he misused them or not. However if he is convicted of that "crime" of keeping let alone bearing, arms while under a domestic violence restraining order, he will then become a felon and will lose his RKBA forever. If he had disposed of his guns, say by having a friend keep them, upon issueance of the restraining order, there would have been no "crime" and no case, and he would have been able to but just "sitting tight" would not have cut it, if he had been discovered. I"m sure his now ex-wife would have insured such dicovery, considering the other charges that she leveled against him that did not stand up in state court.

188 posted on 10/16/2001 7:32:46 PM PDT by El Gato
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To: Dan Day
That sounds right. If he threatened someone with a gun, he's going to pay the price. It may be too high of a price but it was his choice.
189 posted on 10/16/2001 7:34:37 PM PDT by Shooter 2.5
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To: El Gato
Texas statutes provide, or did last I checked, for convicted felons to own long guns and keep them in their home for self defense.

Same in Missouri, felons can have long guns.

190 posted on 10/16/2001 7:37:45 PM PDT by JCG
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To: VW-Cat-Man
So if I own a machinegun or a saw off shotgun then I can not use for any legal purpose? Not even target shooting?

The court wasn't saying that, it was merely repeating for referance the Governments claims in "Miller", and stating that in this case the government wasn't even appealing to the "Miller test". It was not legimizing the government's arguement except to affirm, as it must, the "Miller" findings, which seem to indicate that a weapon without military or militia use, if such should exist, would not be protect under the second amendment. The "Miller" court merely stated that the lower court should not have taken "judical notice" that a short barrelled shotgun was a militia weapon, without some evidence. Of course such evidence would have been easily provided had Miller not died and the case been re-heard at the district court level.

191 posted on 10/16/2001 7:40:40 PM PDT by El Gato
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To: Dan from Michigan
My view - felons can't vote.

But voting is not part of the Bill Of Rights, as RKBA is.

192 posted on 10/16/2001 7:54:40 PM PDT by ctdonath2
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It seems the 5th Circuit wanted to let Emerson off, but there was one thing that made that practically impossible: when the restraining order was requested based on the claim he threatened to murder someone, Emerson had an opportunity to challenge & deny that accusation in court but failed to do so. Most judges would agree that a credible threat of grave physical harm (in this case, an armed & pissed-off ex-husband threatening murder) warrants disarming - at least temporarily - the person in question; the state need not wait until someone is dead before acting on a credible threat to human life. The way this was legally implemented strained judicial tolerance, but was still legally acceptable - especially as Emerson had his chance (however brief & obtuse) to challenge the accusation.

What the Court did was define a line for RKBA, and put Emerson just barely on the wrong side of it. While the ruling did not overturn existing laws, it set a solid foundation for doing so and defined the extent thereof.

Emerson was dirty in that he made a credible serious threat against another. What we need now is a CLEAN case: for someone to sling a loaded rifle over his shoulder and go for a walk downtown. THAT would start toppling the dominos.

193 posted on 10/16/2001 8:05:43 PM PDT by ctdonath2
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Comment #194 Removed by Moderator

To: wcbtinman
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.

That is very clearly what Miller implies: That sawed-off shotguns were able to be regulated because they were insufficiently military in nature.

195 posted on 10/16/2001 8:26:46 PM PDT by lepton
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To: gatex
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).

The opinion addresses that, by lumping Cruikshank in as a "pre-incorporation" ruling. I.E. the basis for the ruling was overturned by later SC rulings, although the specific ruling was never readdressed.

196 posted on 10/16/2001 8:30:16 PM PDT by lepton
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To: lepton
That is very clearly what Miller implies: That sawed-off shotguns were able to be regulated because they were insufficiently military in nature.

At least at that time, and given the (pathetically) limited evidence before the court. Short shotguns are indeed military weapons now and then, and there is no inherent why this factual assumption of Miller could not be controverted by modern evidence.

198 posted on 10/16/2001 8:54:13 PM PDT by Henry F. Bowman
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To: Dan Day
However, he used a gun in a threatening manner while the restraining order was in effect, thereby committing an actual crime, which he is in the process of getting a final conviction for in federal court.

I've not yet found a reference for what you claim above. The sole grounds appear to be that he knew that he was under a restraining order, and had previously signed a document advising him that posession of a firearm while under that type of restraining order was illegal.

"However, for the reasons stated, we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant's Second Amendment rights. Accordingly, we reverse the district court's dismissal of the indictment on Second Amendment grounds. "

199 posted on 10/16/2001 8:55:47 PM PDT by lepton
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To: Henry F. Bowman
At least at that time, and given the (pathetically) limited evidence before the court. Short shotguns are indeed military weapons now and then, and there is no inherent why this factual assumption of Miller could not be controverted by modern evidence.

Absolutely. It suprises me that the Court had not heard of "Trench guns", but in any case, merely stated that they were "unaware" of any such usage.

200 posted on 10/16/2001 9:01:53 PM PDT by lepton
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