US v Emerson

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

[Travis McGee]

bttt

[Don Joe]

"Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country. Indeed, Emerson does not contend, and the district court did not hold, otherwise. As we have previously noted, it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms."

I'm not a lawyer, so my take on that may be skewed, but it looks to me that the above ruling negates all CCW laws except for Vermont's, and means that anyone can carry (i.e., "bear") unless that specific person has been prohibited for non-trivial ("limited, narrowly tailored") reasons.

Comments, anyone?

[Don Joe]

"That's great, but the decision also seems to say that the right can be limited by whatever means the Federal government chooses."

No, it clearly says that such restrictions must be, "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country."

[writmeister]

I think your interpretation is right. Under the Emerson decision, the 2nd amendment is an individual right like the 1st or 4th amendments. However, also like those amendments, it can be subject to reasonable restrictions. Generally, the onus is on the government to show that that those restrictions are reasonable. NOTE: the courts have been reluctant to allow many restrictions on free speech. Emerson's lawyers should look at those cases to attack the restriction in his case as overbroad.

From reading this opinion, it does not appear to be the end of the line for Mr. Emerson's attempt to obtain a firearm. What Judge Cummings did was totally knock out the U.S.'s case. Now it will be up to the feds to prove that the restriction on Mr. Emerson's 2nd amendment right is justified by his conduct. I will not be surprised if Mr. Emerson again prevails at the district court with Judge Cummings tailoring his ruling to fall within the 5th circuits decision.

It sounds convoluted, but that is how the appellate system works.

[freedomcrusader]

First of all, IT'S ABOUT TIME!!!!! Second, the decision was not released according to the court's usual schedule (12:30pm or 5:00pm Central Time.

I know only what I've read here. For the court to say it's a 2nd Amendment right is fantastic! For them to say that Emerson was not inappropriately deprived of that right is disconcerting, but the explanations provided here make some sense.

The long-term implications are hard to sort out. Until the S.C. decides to weigh in, the second amendment is an individual right in the 5th circuit from here on. That much is for sure.

[41Thunder]

What a major win for the Pro-Gun Community. This is like winning the Super Bowl.

Thanks to the Fifth Circuit Court of Appeals for an outstanding decision and scholarly write-up.

[TERMINATTOR]

Anyone who would own finger nail clippers with a file, boxcutters, or an assault weapon, must be menatlly deranged. Right?

Maybe we're not only felons, but crazy too. /sarcasm

[6ppc]

bump for later

[_Jim]

Under this provision, what is excluded from federal regulation?

The price charged for donuts, sluprees and some brands of hot dogs ...

[Shooter 2.5]

Actualy it may not be that bad. We already knew that prisoners couldn't demand their right to keep and bear arms while sitting in prison. Like the guy said, all it takes now is for the government to declare us all felons.

Henrietta, Does Emerson get his guns back after the restraining order is removed?

[lepton]

"These passages from Miller suggest that the militia, the assurance of whose continuation and the rendering possible of whose effectiveness Miller says were purposes of the Second Amendment, referred to the generality of the civilian male inhabitants throughout their lives from teenage years until old age and to their personally keeping their own arms, and not merely to individuals during the time (if any) they might be actively engaged in actual military service or only to those who were members of special or select units."

[Anotherpundit]

One thing this could probably do, correct me if I'm wrong: There should now be some major disagreement among the circuit courts -- which would force the USSC to hear, say, someone's appeal against the assault weapons ban.

[TheErnFormerlyKnownAsBig]

Is the above interpretation of the dicta in our favor (indiv. right upheld) correct? Or were they just restating Emerson's argument, because that was the way I read it.

[Stat-boy]

While I am no expert on constitutional law, my initial impression of this case is that it went very well. The facts were not very good from a 2nd amendment point of view because Emerson did not have clean hands. Nevertheless, the court went out of its way to research and publish a lengthy opinion that provides as much evidence as it could find in favor of the 2nd amendment being an individual right. There is no way that any case, whether in the 5th circuit or not, can ignore the court’s work. Yes, they may not be bound by this court, but they will be faced with the reasoning.

My dream is for one or two of the left-wing US Supreme Court members to retire during Bush’s term to retire and be replaced by Bush nominees, and THEN for a 2nd amendment case to reach the US Supreme Court. In addition, that case would ideally benefit me (and most of us) directly. For example, if a citizen in a state that did not issue concealed handgun permits argued against the relevant state laws based on his 2nd amendment rights. A case along these lines would give the US Supreme Court the ability to rule that the right to BEAR arms is protected by the 2nd amendment, and is thus subject to only reasonable limitations (felons, children), and therefore, no state can prohibit an otherwise qualified individual from carrying a gun.

[Don Joe]

Very strong language, and, it demonstrates that they made their ruling with a solid understanding of the underlying principles. The bibliography in footnote 12 is quite revealing. Click on the link below!

"The individual rights view has enjoyed considerable academic endorsement, especially in the last two decades. (12)"

[Charles Martel]

Bump for later reading.

[hchutch]

Not being a lawyer, some of the statements here will give the folks at Brady Campaign a serious case of heartburn.

Rhenquist, Scalia, and Thomas will definitely uphold. I think Kennedy and O'Connor will be along for this ride, too. If we had Garza in place of Stevens and Luttig in place of Ginsburg, I'd feel much better, but I think we'll win, and a 5-4 win is still a win.

[Lurking Libertarian]

I'm not a lawyer, so my take on that may be skewed, but it looks to me that the above ruling negates all CCW laws except for Vermont's, and means that anyone can carry (i.e., "bear") unless that specific person has been prohibited for non-trivial ("limited, narrowly tailored") reasons.

You're probably right, with one significant "maybe not": the Bill of Rights originally applied only to the Federal Government, not to the states. A series of court decisions from the 1920s through the 1960s applied most, but not all, of the BOR to the states (freedom of speech, unreasonable search and seizure, double jeopardy, jury trial in criminal cases, all apply to the states; requirement of a grand jury in criminal cases and a right to trial by jury in civil cases don't). The Supreme Court could still hold that the RKBA is binding on Congress but not on the states.

[wcbtinman]

Please correct me if wrong, but I have never seen where Emerson was convicted of anything. As I read the 5th Circuit decision, the court has allowed the indictment of Emerson to stand based on the defense presented and has sent the case back to the lower court for further proceedings, if any.

Since Judge Cummings of the lower court has already dismissed the indictment, what latitude/option is left to the govt?

[TheErnFormerlyKnownAsBig]

attencion por favor.