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.
1) The Emerson case was a 5th Circuit case therefore only directly applies to those states in the 5th Circuit (Texas, Louisiana, Mississippi).
2) CCW laws are state laws. The 2nd Amendment has never been held to apply to the states through the 14th Amendment (commonly referred to as "incorporation") unlike most of the other amendments in the Bill of Rights. The law at issue in Emerson is a federal law. We need a case that will allow SCOTUS to rule that the 2nd Amendment is incorporated into the 14th. Until then, you can forget about overturning state laws.
I haven't read the actual opinion yet, but these were 2 things that jumped out at me regarding your statement.
I pinged CWW on this and I am hoping he chimes in. You may remember him from his legal analysis of the recount saga.
2) CCW laws are state laws. The 2nd Amendment has never been held to apply to the states through the 14th Amendment (commonly referred to as "incorporation") unlike most of the other amendments in the Bill of Rights. The law at issue in Emerson is a federal law. We need a case that will allow SCOTUS to rule that the 2nd Amendment is incorporated into the 14th. Until then, you can forget about overturning state laws.
I don't buy it. Here's why: the other side uses the 2nd -- while misinterpreting it -- to use against us. They can't have their cake and eat it too. If they want to argue that the 2nd doesn't apply to state matters, then I would presume that they'd argue it. To my knowledge, they never argue it, they only argue that it does not cover individual rights, and only applies to collective rights.
Seems to me that if they are acknowledging that it does apply to the states (which IMO is the crux of their argument!) then it's just a simple matter of ironing out the details, which yesterday's ruling seems to have done nicely.
IOW, they insisted that it applies to the states -- and now they'll have to sleep in the bed they made.
Last night this was dinner conversation with my also-attorney wife. (She is admitted in PA/NJ/DC, me just NY) and our consensus was that Mr. Robinson's case would probably never see the light of day, and if it did he would not want to drag it out and draw attention to himself.
I think we need somebody (if the politicos in the PRNJ don't kill the case first) to recruit him to do the right thing. Given his very good choice in a sport-utility-rifle (;-) I just love that!) he may be more Pro-RKBA than the average bear.
Reading several of the gun cases shows that the dishonest judges can take a Supreme Court case, quote a ruling, and then twist the words to rule just opposite in their court.
Senator Dianne Feinstein lied to the public recently when she misrepresented the Miller case. The problem is that the members of Congress and apparently many lawyers are not sufficiently familiar with the cases to challenge the public lies. I admit, it does take some study to understand what some of the judges are saying ---it is not all deception--I one knew a PhD whose writings were hard to understand.
Fortunately the internet is resulting in faster communication about these cases.
I doubt it , since the Supreme Court appears to not take a state law case. If the Supreme Court took this and ruled against NJ, it would blow gun control out of the water in New Jersey, New York, California, Massachusetts, etc. While very desirable, the court probably would be reluctant to drop the nuclear bomb before laying some more groundwork.
A federal law case based on the interstate commerce clause would be better, since this court has already ruled in 1995 that the federal "guns in school zone law" , based on interstate commerce, was unconstituional. [ U.S. v. Lopez, No. 93-1260 ] Most of the federal gun laws are based on interstate commerce.
In any event, the climate is getting more encouraging.
But you miss my point. It's the next court that counts, and whether this is dicta depends on what that court holds, not this one. The logic of what you say is correct, but you are mistaken if you think you can rely on the next court to feel bound by that logic.
I am pinging the lawyers that helped on the recount. If wasn't for their work then you would be whistling Hail to the Chief everytime Algore walked into the room.
I don't know if Robinson is "the case", but it does have some fine attributes.
It has long been established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution. Frost & Frost Trucking Co. v. Railroad Comm'n of California, 271 U.S. 583 . "Constitutional rights would be of little value if they could be . . . indirectly denied," Smith v. Allwright, 321 U.S. 649, 664 , or "manipulated out of existence." Gomillion v. Lightfoot, 364 U.S. 339, 345 . Significantly, the Twenty-fourth Amendment does not merely insure that the franchise shall not be "denied" by reason of failure to pay the poll tax; it expressly guarantees that the right to vote shall not be "denied or abridged" for that reason. Thus, like the Fifteenth Amendment, the Twenty-fourth "nullifies sophisticated as well as simple-minded modes" of impairing [380 U.S. 528, 541] the right guaranteed. Lane v. Wilson, 307 U.S. 268, 275 . "It hits onerous procedural requirements which effectively handicap exercise of the franchise" by those claiming the constitutional immunity. Ibid.; cf. Gray v. Johnson, 234 F. Supp. 743 (D.C. S. D. Miss.).
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