Posted on 10/16/2001 1:00:48 PM PDT by 45Auto
Especially when your very livelihood hinges upon your right to keep and bear arms.
Something to think about before you hop into her bed or say "I Do."
David
It would be nice if any of this were true, but it isn't. The existing law is the rule, not what we'd like the law to be. If the law is (as it is in Missouri) that felons can't have guns that's the way it is. As for "paying a debt to society" -- that ain't law either. The phrase is used all the time but it has no basis in law.
What is good about this case is the holding that there is an individual right to own guns; what is even better is that, because the government "won" the case, it cannot appeal to the Supreme Court.
Of course, nowadays, anything can be a felony and everyday a zealous prosecutor or legislator is seeking to add another "felony statute." "Dangerous people?" Well, that could be anyone. Just give the prosecutors & spinmeisters a little room and girl scouts will become the sourge of the earth, who should be banned from ever owning a firearm for life. Way too much wiggle room in these "opinions." I'm still looking for that "felons & dangerous people" clause in the Constitution or that other clause that says when one is excommunicated from "the people." I always thought a citizen was a citizen was a citizen. Maybe a citizen isn't always a citizen? Maybe the government will eventually declare us all dangerous felons? Step by step, with reasonable sounding arguments, they erode our liberty. At least they recognized an individual's right to keep and bear arms. I guess that's something. Now they need to define who a citizen is and isn't.
I would think that the best approach would be a clean test case, within the 5th Circuit boundaries, for violating some existing federal law (maybe Brady or some portion of the 1968 Gun Act). Presumably either a lower court or the 5th Circuit Court would then use the Emerson holding to invalidate that (portion of the) law as a violation of the 2nd Amendment. At that point the federal government could either appeal to the U.S. Supreme Court, or else someone in another District who was convicted of that law could appeal to the USSC. The USSC would almost be forced to take up the issue to resolve the conflict.
Assuming the USSC substantially adopted the Emerson holding regarding the 2nd Amendment being an individual right, numerous federal firearms laws would immediately be invalidated or be sharply limited. At that point a new test case against some state gun-control law could be appealed to the federal courts (preferably within the 5th District), as a lead-in to Incorporation. And if the USSC ultimately incorporated the 2nd Amendment via the 14th Amendment, a huge array of state gun-control laws would come tumbling down.
He also ran it by his buddy, a high flying legal superman who agrees.
So it will be up to a jury to decide if he did in fact have the gun. I'm no lawyer, but it seems like saying you didn't know you were breaking the fed. law after you get the restr. order because, A. the ATF form didn't have that warning when I signed it, or B. I checked "no" so I didn't flip it over and see 3 b. that said if you checked yes you couldn't have a firearm or C. I just plain didn't know the law, doesn't work so well.
His options are severely limited.
Moreover, the opinion is rooted in US v. Miller, a case which AFFIRMED the federal government's ability to regulate civilian access to military style weapons in the interest of public safety. To begin to say that the ruling will tear down the assault weapons ban is to ignore this fact.
Moreover, limitations on individual rights particularly with regard to obscenity, have long relied on the application of 'prevailing community standards'. There is nothing to indicate that, with regard to gun ownership, prevailing community standards will not similarly obtain. Therefore California or NY state law limiting certain firearms will not be repealed simply because there are communities with more open laws (case in point Utah's pornography laws).
Even if the 5th circut's opinion was to become the law of the land (and it is still a long way from that) state or local governments would still be able to restrict access to certain weapons.
However, and thankfully, the ruling does hint at certain maximum limits on the power of federal or local governments to limit weapon ownership. It would clearly be unreasonable to prohibit ALL weapon ownership. So, long rifles and shotguns with recreational purposes as well as handguns which are clearly for self-defense are safe from restriction and confiscation.
This is exactly the opposite of the 5th circuit's opinion of Miller. From the link at the source:
"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn. 154, 158." Id. at 818.
Clearly this court thinks Miller was trying to determine whether a particular weapon had a military utility -- in which case the weapon would be 'protected' from legislation, and not as you stated that the government was 'Affrimed' in regulating them.
Please read the brief at the link. They have a whole section on what they think Miller was about.
However, a full reading of the Circut's ruling (including the concurring--but disenting--opinion) leaves me less sanguine. As Parker notes, the majority's assertion of an individual right to bear arms is completely hollow because even after the extensive justification of the validity of thier legal reasoning, the presence of a constitutional right appears insufficient to set aside even a boilerplate court order! My GOD! If a second amendment right to bear arms exist as they say it does, it must be among the weakest of those enumerated in the bill of rights! No such a restriction on speech, religion or the press would be tolerated. As eroded as the 4th amendment protections have been lately, they still stand tall compared with this sickly second amendment. As it stands, no 'reasonable' gun regulation is threatened even slightly!
Not quite. The RKBA conclusions in this case ARE NOT dicta, they are central to the final ruling. The 5th Circuit concluded that Emerson's RKBA right _could_ be suspended via due process - and to suspend the right requires that there be a right to suspend. They had to make it absolutely clear (not dicta, but central finding) that the 2nd Amendment guarantees an individuals RKBA, _then_ they made it clear that such Constitutional rights may, under limited due process conditions, be suspended. If the finding was mere dicta, there would not have been a right to suspend.
The next court, be it USSC or the original court (to which the case has been remanded), can only address the "due process" issue. The RKBA issue is settled: the plantiff (feds) cannot appeal the issue to the USSC because they won this round, the plantiff cannot raise the issue again in the lower court because a higher court settled the issue, the defendant cannot appeal the issue to the USSC because the 5th Circuit agreed with him (he can only quibble with the "due process" part), and the defendant cannot raise it in the lower court because the 5th Circuit agreed with both the defendant and lower court.
In the 5th Circuit's jurisdiction, the RKBA is SETTLED. The way to get RKBA to the USSC is to raise the same question in a different jurisdiction and get an equal court to differ with the 5th Circuit, causing an equal-protection rift that could only be settled by the next court up: USSC. May Robinson go there with his squeaky-clean well-funded case - and may he do it soon.
Not quite. Miller affirmed the fed's ability to regulate access to NON-military weapons. If Miller had demonstrated that a sawed-off shotgun was useful for military use, the court would have ruled he had a right to it. (Unfortunately, by that point Miller was dead.)
It is complicated, because there was no finding of fact. However, it is clear to everyone that Emerson was wrong for saying what he said, and that is what sunk him the most. The court cannot say that the freedom of speech includes the right to make murderous threats, and it cannot allow a person who makes murderous threats to go scott free. Temporarily taking his weapons in this instance was probably justified, although as I said I am not satisfied that it was done in a Constitutionally correct manner.
A boilerplate order should not be enough to strip him of his rights. The court should have made this point, but didn't. I suspect, and hope, that Emerson will continue to appeal the case on these grounds. However, the end result was IMHO correct in that he should have been temporarily stripped of his rights because of his threats. That is what makes this so complicated. The courts need to clear it up. The state needs a court order to search your home, stating the time, places to be searched, and reason for the search. The state should need to do something similar if they wanted to take away his 2nd Amendment rights.
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