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.
From SAF
The decision is finally in. The majority (Garwood wrote, DeMoss signed onto it) found the Second Amendment is an individual right, but reversed and remanded the Emerson case. As expected, Parker in a minority opinion did not want to support the Second Amendment.
Email from Dave LaCourse of SAF
Hi Folks,
Bottom line is that the majority held (more than dicta as an attorney pointed out) that the Second Amendment is in fact an individual right not tied to "militia service".
A huge win for us!!!! Clinton/Gore/Reno government position rejected. But Emerson should appeal the reversal. Will contact his attorneys tomorrow. I am upset that the majority claimed that the tenth amendment issue is dead, especially since a cross appeal by Emerson was denied earlier. What more did he have to try.
Dave
Kudos to SAF for taking the lead on this.
You know, I think you may be right...
Whoa! The 5th Circuit just (respectfully) said that the other sister circuits have not been doing their homework and are sloppy.
Woohoo!!!
Anyone have the addresses of these judges. I want to give them each an 'attaboy' letter. Man, these judges can read too. ;)
III. Commerce Clause The district court rejected Emerson's contention that, in enacting section 922(g)(8), Congress exceeded its power under the Commerce Clause. As the district court noted, this Court has held that, because section 922(g)(8) only criminalizes the possession of firearms or ammunition "in or affecting commerce" and the reception of firearms that have been "shipped or transported in interstate or foreign commerce", Congress did not exceed its Article I, Section 8 powers in enacting it. United States v. Pierson, 139 F.3d 501, 503 (5th Cir.), cert. denied, 119 S.Ct. 220 (1998). Accordingly, the district court, as bound by this precedent as we are, did not err in denying Emerson's motion to dismiss the indictment on Commerce Clause grounds.So anything that has ever shipped in interstate commerce is subject to federal regulation. Everyone in Texas, based on this ruling, ought to be rebarreling their post-1994 AR-15s with bayonet lugs. We need average, law-abiding Citizens of the several States to be charged with simple possession of a "prohibited" arm. Then they'll have to say that the government's interest in regualting commerce among the States is sufficient to deprive second amendment rights. Remember, the commerce clause is the nexus they use to extend their legislative reach into the several States in the first place.
The 5th Circuit just reversed Judge Cummings' dismissal of the indictment and remanded the case to the District Court. The indictment is back in effect, essentially.
The indictment is now reinstated and the case goes back to trial. Based on the Couer of Appeals' language, Emerson is probably toast, because it looks like the only issues for the jury are (1)was he subject to a court order of protection, and (2)did he buy a gun after that date? The answers to both of those are clearly yes, so he's going to be found guilty unless the jury decides to nullify.
"We believe it is entirely clear that the Supreme Court decided Miller on the basis of the government's second argument-that a "shotgun having a barrel of less than eighteen inches in length" as stated in the National Firearms Act is not (or cannot merely be assumed to be) one of the "Arms" which the Second Amendment prohibits infringement of the right of the people to keep and bear..."
Where did you get this ?
"However, there are numerous instances of the phrase "bear arms" being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the "people" [or "citizen" or "citizens"] "to bear arms in defense of themselves [or "himself"] and the state," or equivalent words, thus indisputably reflecting that under common usage "bear arms" was in no sense restricted to bearing arms in military service.(29) And such provisions were enforced on the basis that the right to bear arms was not restricted to bearing arms during actual military service. See Bliss v. Commonwealth, 13 Am. Dec. 251, 12 Ky. 90 (Ky. 1822).
We also note that a minority of the delegates to the Pennsylvania ratification convention proposed the following amendment to the Constitution:
"That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers."
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. .It seems to me that the definition of the above could keep an army of lawyers in court with government prosecutors for an eternity, given the plethora of (B.S.) firearms laws in place. And the citizen would be hung out to dry fighting it all and paying the legal expenses. While better than a "2A is not an individual right" decision, I am not particularly encouraged. :-(
Someone convince me I am being too pessimistic.
The court and apparently the law are saying he should have known, by signing the form, that when in the future he came under the order of protection that he had to get rid of his guns.
All the above is to be taken with a grain of salt as I am not a lawyer and could be remembering the ATF form/gun purchase timeline incorrectly.
I also got a link via email that showed the exact forms he signed and another newer form where some wording was changed that might bear in the case when it goes back to trial. Except that they will probably say that he should have known the law anyway.
[You:] Where did you get this ?
My mistake. The relevant question, under the appeals court's ruling, is did he possess a gun after the date of the protective order; and the answer to that question is obviously yes.
Dicta here very strong as to the rights guaranteed by the 2nd Amendment being individual rights, and that the same "people" mentioned in the 1st and 4th amendments are also the "people" in the 2nd.
Will Emerson get his guns back? I don't know. The lower court seemed sympathetic to his plight, but has been ordered by the higher court to make a ruling not inconsistent with the higher court's ruling. If violation of 18 USC 922(g)(8)(C)(ii) is a felony, and he is found guilty, he won't be able to legally possess a firearm again. But that's the whole point, isn't it -- to make "zero tolerance" policies that ensnare even the innocent, so we can whittle away at the Second Amendment.
Lock and load, folks.
That is good, except for two points.
I don't think the Federal government should be involved in placing those limitations.
and
A simple and broad "restraining order" is not a reasonable restriction.
For all I know Emerson might be an abusive and violent man who should be restrained, but due process should be paramount and his 2A protections not lifted so easily.
JWinNC
If you buy that, then all federal gun control laws are unConstitutional.
"No doubt the special interests and academics on both sides of this debate will take great interest in the fact that at long last some court has determined (albeit in dicta) that the Second Amendment bestows an individual right. The real issue, however, is the fact that whatever the nature or parameters of the Second Amendment right, be it collective or individual, it is a right subject to reasonable regulation. The debate, therefore, over the nature of the right is misplaced. In the final analysis, whether the right to keep and bear arms is collective or individual is of no legal consequence. It is, as duly noted by the majority opinion, a right subject to reasonable regulation. If determining that Emerson had an individual Second Amendment right that could have been successfully asserted as a defense against the charge of violating § 922(g)(8), then the issue would be cloaked with legal significance. As it stands, it makes no difference. Section 922(g)(8) is simply another example of a reasonable restriction on whatever right is contained in the Second Amendment."
Judge Parker along with his fellows has missed the entire point of the RKBA; the 1895 SC decision in US v. Cruikshank was the last case in which the ORIGINAL intent and meaning of the 2nd was enunciated, to wit: The Bill of Rights in general, and the 2nd Amendment in particular, do not GRANT anything to anybody, they merely (if such a word could be used) reiterate what the Founders considered NATURAL or GOD-GIVEN rights; Cruikshank said that the RKBA existed BEFORE the Constitution was written and that, therefore, no government could LEGALLY infringe that natural, human right.
Furthermore, the anti-gunners lose a lot of the high ground in this ruling, even if Emerson loses his case on the restraining order provision. They got their heads handed to them.
The key is to see the petition for cert. If the Supreme Court declines to hear, then we have a decent precedent in the 5th Circuit. But if they hear it, the people who vote to grant cert are key. If it's Scalia, Thomas, Rhenquist, and one other, we'll win. If it's Stevens and Souter, plus the Clinton appointees, we're in deep trouble.
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