US v Emerson

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

[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.

[NovemberCharlie]

Not quite; Cruikshank did not involve the states' obedience to the Bill of Rights, because it was a federal law involved. What Criukshank said was that the 14th Amendment protected citizens from state actors, not private individuals. (Cruikshank et al. were accused of violating the civil rights of several black citizens, but the Court ruled that was impossible; in fact they had merely committed the more mundane crime of murder, whose prosecution was not within the authority of the United States; that was the state's job.)

[lepton]

"13. In United States v. Cruikshank, 23 L.Ed. 588 (1875), the Court held that the Second Amendment "is one of the amendments that has no other effect than to restrict the powers of the National Government." Id. at 592. In Presser v. Illinois, 6 S.Ct. 580, 584 (1886), the Court, reaffirming Cruikshank and citing Barron v. Baltimore, 8 L.Ed. 672 (1833), held that the Second "amendment is a limitation only upon the power of congress and the national government, and not upon that of the state." And, in Miller v. Texas, 14 S.Ct. 874 (1894), the Court held, with respect to "the second and fourth amendments" that "the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts," citing Barron v. Baltimore and Cruikshank. As these holdings all came well before the Supreme Court began the process of incorporating certain provisions of the first eight Amendments into the Due Process Clause of the Fourteenth Amendment, and as they ultimately rest on a rationale equally applicable to all those amendments, none of them establishes any principle governing any of the issues now before us. "

[lepton]

Not quite; Cruikshank did not involve the states' obedience to the Bill of Rights, because it was a federal law involved. What Criukshank said was that the 14th Amendment protected citizens from state actors, not private individuals. (Cruikshank et al. were accused of violating the civil rights of several black citizens, but the Court ruled that was impossible; in fact they had merely committed the more mundane crime of murder, whose prosecution was not within the authority of the United States; that was the state's job.)

I'm not arguing as to whether they were correct or not, but that is what they opined.

[FreedomPoster]

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.

So maybe the Damien Robinson case is that case? The weapon was a semi-automatic AR, so easily proven to fit under Miller's criteria. And the guy's certainly got the money for lawyers. Hopefully no priors, and then this looks ideal.

Methinks GOA and NRA need to beat a path to his door. It would be great to see a big chunk of PRNJ's firearms laws go flying out the window.

[Twodees]

Since the main thrust of the ruling was a remand, a defense attorney will need a very compliant judge to even get Emerson accepted as supporting case law for a defense against that kind of law. As HB pointed out, the points raised in favor of the personal RKBA in the ruling become dicta, because they aren't raised as support for the central conclusion of the ruling, which is a reversal of the brave (and correct) ruling of the District Court judge.

Judges fearing reversal almost always automatically include the word "irrelevant" when referring to dicta cited in a case like Emerson. To me, this ruling isn't nearly as encouraging as the 2nd Amendment foundation seems to be saying that it is. Of course, they have several attorneys as members, and I'm not an attorney.

[harpseal]

Thank you for your expertise. I guess I should start cheering. Now, am I correct that this case then provides conflicting interpretaions at the Court of Appeals level that will make the issues ripe for the supreme Court to issue mandamus when an appropriate case comes before it?

Stay well - Stay safe - Stay armed - Yorktown

[Mason]

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?"

Unfortunately there is a lot less integrity to our courts' opinions than meets the eye, and all one has to do is look at the turmoil in Bush v. Gore to know it's true. Switch that outcome, and probably 80 percent of our esteemed jurists and law professors would have found a way to switch their reasoning.

I should give the opinion more attention than I've had time to, but I'm quite confident that any other court looking at this that wants to rule against the Second Amendment, including on the basis of this insane collective right idea (do we have a collective right of free speech? In that case, shut up.)will be able to do so, simply by saying that Emerson's right was restricted in any case, which could have been the result no matter how they decided the collective right issue.

Even so, you may be right, technically. Since the collective right reasoning was decided, it may well be substantively part of the decision, and binding upon any court of integrity. Good luck, there. Your odds probably exceed 50 percent.

[Abundy]

This is huge. I've read it and the result is not unexpected.

First, Emerson could appeal this decision if he wanted to. It went against him. However, the Court is saying that there was barely enough "evidence" to implicate 922. If Emerson had induced evidence that the prohibition against future violence was pro forma in all restraining orders without any particular showing of previous violence (IT MOST CERTAINLY IS, I CAN ATTEST TO THAT FROM MY CURRENT POSITION) then I would wager the decision would have been different as there was no showing of actual violence or threats.

Second, this decision, in outlining the history of the Second Amendment, is a huge, "respectful" slap in the face to all those sister circuits that didn't analyze Miller.

Third, this decision, using historical quotes, specifically endorses the "insurrectionist interpretation" of the Second Amendment.
PHUCK YOU MICHAEL BARNES AND SARAH BRADY.

Fourth, this opinion establishes a split between the Circuits as to the nature of the Second Amendment - a prerequisite for SCOTUS review.

Fifth, it clearly analyzes the individual right as a fundamental one - "narrowly tailored" is the Strict Scrutiny Review reserved for fundamental rights and is the hardest to survive.

Sixth, it clearly lays the groundwork for a 14th Amendment/incorporation challenge of State Laws that don't meet a Strict Scrutiny review.

All in all a win for individual rights. Small, baby steps will win this war against tyranny.

Let's hit Feinswein/Daschle/Sarbanes/all the rest of the anti's with this quote:

I wish, among other reasons why something should be done, that those who have been friendly to the adoption of this consitution may have the opportunity of proving to those who were opposed to it that hey were as sincerely devoted to liberty and a Republican Government, as those who charged them with wishing the adoption of this constitution in order to lay the foundation of an aristocracy or despostism."

They have been shown the evidence and history. If they truly believe in individual rights they will follow Madison's admonishment and work to support the consitution.

[Abundy]

The poster is correct, the decision specifically HOLDS that the Second Amendment is an individual right.

[Abundy]

Cruickshank also said that the "right to carry arms for a lawful purpose is not a right enumerated in the constitution; neither is it dependant upon that instrument for existence."

Clearly a declaration that the right to carry arms for a lawful purpose is a fundamental, indivdidual right. The problem was at that time the 14th Amendment had not incorporated the BOR so that a citizen could successfully invoke the BOR against his state.

[Triple]

But, what if the slurpee machine crossed statelines?

BTW - I vote to have the original _Jim back. He drew attention to all the important issues and defended the indefensible (or made a futile attempt to). This kinder gentler _Jim is so, well, blah.

Come on - tell us why schippers is all wet.

[gatex]

"As these holdings all came well before the Supreme Court began the process of incorporating certain provisions of the first eight Amendments into the Due Process Clause of the Fourteenth Amendment, and as they ultimately rest on a rationale equally applicable to all those amendments, none of them establishes any principle governing any of the issues now before us. "

But all the cases I have read indicate the U.S. Supreme Court has not incorporated the Second Amendment.

In fact the 9th Circuit Appeals said in the 1992 case about the California assault weapon ban---

"Until such time as Cruikshank and Presser are overturned, the Second Amendment limits only federal action, and we affirm the district court's decision ' that the Second Amendment stays the hand of the National Government only."

[Fresno Rifle and Pistol Club v. Van De Kamp, 965 F.2d 723 (9th Cir. 1992) ]

The Supreme Court also declined to hear the Village of Morton Grove (Illinois) case, where the Village banned handguns within the Village borders (cert denied 1983).

[writmeister]

I'm not sure if we have a clean conflict because I have not read opinions from the other circuits. I suspect we will need a clean conflict because the Supreme Court probably does not want to get into this issue and will look to avoid it.

Emerson won't be able to take the "individual rights" issue up because he prevailed on that issue. Legal term: issue not ripe.

It would be up to the government. Under the clintonistas, they would have automatically appealed it. Under the new regime, I just don't know if they will switch positions (hopefully). If they do, they will want to make sure this case does not have some factual quirk which could mess up the pure "individual rights" issue. I suspect the government will not appeal this issue -- leaving it only as good law in the 5th circuit (Texas, Louisiana & Mississippi).

The best chance to take it up to the Supreme Court will probably come in a case from a more liberal circuit where the gun-owner makes an Emerson-type claim and the circuit court finds that 2nd amendment is a "collectivist right" or a "state right". Then, that gun-owner will be able to file a writ of certiorari claiming conflict of circuits and that his claim is ripe because he did not prevail at the circuit level.

[harpseal]

Thank you for your comments and insight. I hope that we can soon get the Emerson opinion affirmed by the Supreme Court or by one or more other circuit courts. I realize that precendent is not necessarily binding in other circuits but what is the chance of this being cited in appeals or decisions in circuits where the Circuits have not yet ruled on second Amendment Claims.

I realize this is speculation on your part for the future but I would like to know if a future case in a district court in another circuit could have the Emerson decision cited as a basis for a district court ruling and would the Emerson case also be a included in a possible appeal to a circuit?

Stay well - Stay safe - Stay armed - Yorktown

[lepton]

But all the cases I have read indicate the U.S. Supreme Court has not incorporated the Second Amendment.

They have simply not addressed it rather than having rejected it. What this court opines is that the same legal reasoning that includes the others of the first eight Amendments as being incorporated by the 14th would neccessarily also include the 2nd.

[writmeister]

Yes. It could be considered by district courts in other circuits or in arguments to the other circuit courts. Generally, the rule is that opinions by their sister courts are considered persuasive rather than binding. That is the other circuits will have to give a cursory look to the Emerson decision.

BTW, I don't know why they refer to them as "sister courts".

[Abundy]

Sure, anyone can cite anything. This ruling gives judges an opinion to hang their hats on. It forces judges to actually think about Miller and not blindly cite it.

I can't shout loudly enough:

PHUCK YOU MICHAEL BARNES, YOU INTELLECTUALLY CHALLENGED POS. YOU GIVE ATTORNEYS A BAD NAME

As if the rest of them need any help...

[gatex]

"What this court opines is that the same legal reasoning that includes the others of the first eight Amendments as being incorporated by the 14th would neccessarily also include the 2nd...."

Very good---maybe this court's comments on record will influence other courts to follow.

[Freedom2specul8]

I kick myself EVERY DAY for giving my blacks law dictionary to my daughter's school. What does pro forma mean and thank you so much for explaining and bumping to me.

[Squantos]

We need to be knee deep in their @ss 24 and 7 now that the truth is out for all to see. We knew and pushed the facts versus spin but I have noted that the Socialist HCI types are already screaming victory in this matter. They are on the run and propaganda is their only weapon as it has been all along.

We have to keep after em, as they are like a cockroach and will always be here. It's a everyhour , everyday job and I'll be one that checks em daily and counters with "FACT" versus "SPIN".......baby steps as you stated, good analogy Abundy !

Stay Safe !