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.

[XJarhead]

Another lawyer showing up.

Look, any reasonable person should concede that the federal government has a right to limit private ownership of firearms under certain circumstances. The common law at the time of ratification recognized that felons could be deprived of certain rights. If you take a strict, literalist approach, then a convicted felon should have the right to an automatic rifle even while sitting in prison.

There also are some common-law guidelines for what can constitute a felony, so it's not like chewing gum would qualify. It's a reasonable and well-reasoned decision.

[Henrietta]

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,

Actually, he bought the gun on October 10, 1997 in San Angelo, Texas, from a licensed dealer. The restraining order came down on September 14, 1998.

[JWinNC]

"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. :-( "

I concur, but I'm not pessimistic. It's still a partial victory and useful to advancing Liberty.

JWinNC

[gatex]

1997, Oct 10---Emerson bought pistol.

1998, Aug 28---Emerson's wife filed for divorce and got restraining order.

[Jeff Head]

I don't like it.

Oh, it may well be better than them saying that the 2A is a "collective right".

They in fact say it is an individual right, but then in Emerson's case, they treat it like a "collective" right, having the collective unilaterally decide for all individuals when it is they can and cannot retain the right.

If the government can tell us that ... due to this "infraction or that infraction ... we lose the right ... then it is in effect a collective right all along. If they think Emerson is too dangerous to exercise his right, then Emerson should remain incarcerated. But given this "crime" ... which is really a statement by his ex-wife ... they know they cannot get away (just yet) with putting him away in jail.

It's double speak IMHO, that further reinforces the government position that it TELLS us when we can or cannot retain our God given rights. <p. So, while it is perhaps better than them telling us that we have no right outright (which I do not believe the government could get away with), it tells us we have the right, but that it's government's job to regulate it. That smacks of fascism. Look at Emerson if you doubt my words ... he does not have his guns, neither can he get any ... all over very lame and frivolous reasoning.

[freedomcrusader]

In the final analysis, whether the right to keep and bear arms is collective or individual is of no legal consequence.

How wrong he is! If it's a 'collective' right, then the gun-grabbers can grab ALL of our guns, anythime they have a majority in Congress willing to do so. However, if it's an individual right, then the gun-grabbers need a majority on the Supreme Court, too!

[TheErnFormerlyKnownAsBig]

Thanks, I thought that was the timeline.

[Henrietta]

Please see post 42 and give us your opinion.

I'm not sure if I do or don't agree with the analysis in post #42. While I am of the opinion that any restriction on firearms rights violates the plain language of the second amendment (including for felons, by the way)I don't know how this will translate into actual legislation to curtail state restrictions on concealed carry.

I know some of you out there in FReeperland would like to tar and feather me for my advocacy of firearms rights for everyone, but it is based on the principle that the right of self defense is God-given, and can't be taken away from someone just because he has a criminal past. I think we should punish people for the wrongs they actually commit, rather than deny people their God-given right to self defense based on what we imagine they might do.

Remember, if the right to self-defense is really only a privilege that can be taken away at the whim of some government agent, how secure is YOUR right to self-defense?

[freedomcrusader]

I would like to add to your eloquent defense the proposition that if certain members of society are too dangerous to possess firearms, then they should be behind bars, not free on the streets but merely prohibited from owning a firearm.

By their nature, they WILL obtain one illegally anyway. Hence, the prohibition seems meaningless.

[monkeyshine]

It seems to me that Mr. Emmerson could seek of writ of certiorari (permission to appeal) from the SCOTUS, on the narrow issue which the 5th Circuit decided against him, which is whether or not the District Court was correct that the indictment based on this restraining order was too much of an infringement on 2d Amendment rights.

I am not a lawyer, and that seems correct to me. We won and he lost, and we lost a little. He could (and I hope he does) appeal the restraining order issue, as the original (lower) court held that a restraining order is perfunctory in divorce cases. Without an individual finding of his guilt or innocence, how could a right be stripped?

You would know better, but isn't there some simple law 101 issue regarding the 1st Amendment, that the court cannot issue a gag order, that is, they cannot prevent you from saying something, they can only punish you once you do say something... so why should the court be able to 'gag' you from your 2nd Amendment right?

[Henrietta]

There also are some common-law guidelines for what can constitute a felony, so it's not like chewing gum would qualify.

Really? Well, maybe chewing gum does not qualify as a felony, but here in Oregon, driving a car with a suspended license is a felony. That seems a lot like "gum chewing" to me.

[TheErnFormerlyKnownAsBig]

Look, any reasonable person should concede that the federal government has a right to limit private ownership of firearms under certain circumstances.

I don't know if I like the wording in that sentence. Maybe it would sound better if it read. "look, any reasonbable person should concede that the individual can commit crimes that would warrant the loss of certain rights belonging to the non-felon; such as murder, drug trafficing, bank robbery, etc.."

To some the first sentence sounds reasonable, but I bet there are plenty of Dershowitz style attorneys out there that would love to nibble our rights to death and that first sentence sounds more edible.

[45Auto]

Yes, I think you're right. The whole thing generally reeks of the kind of semantic wranglings common to the legal profession. (I know there are RKBA-friendly lawyers posting here; I don't mean to demean the once and noble profession) The one thing missing from the sort-of dissenting judge's (Parker) opinion is that if by some stupidity of the near future the US SC should accept the collective rights theory, just how do they propose to go about collecting guns from more than 80 million Americans? The SOB's would be standing on the threshold of Civil War II.

[hchutch]

The major intellectual underpinnings of the anti-gunner took a serious hit here. It's big, and it's very bad for them.

It's accepted that felons do lose some rights (right to vote, right to bear arms). The same may apply for those who might be of concern. Furthermore, even if this line of reasoning is upheld, the anti-gun bunch loses the machine gun freeze and the 1994 semi-auto ban, as well as any ban the states have.

What is left with this reasoning? Felons and other classes of no-goodniks will be prohibited from owning firearms. You may set up something like NICS. You can set up stuff like 10-20-life for those who misuse the right to bear arms. States can govern concealed-carry, but it will have to be Florida-style as the maximum extent of control. I don't know how interstate will work, but that may come from the "full faith and credit" clause.

NO type of firearm can be banned. This also kills registration and licensing, since the case can now be made that it sets up a ban. With an instant check, this kills just about every waiting period scheme, too. And say good-bye to one-gun-a-month and the sporting purposes test.

Not a wipeout of the other side, but they are still crushed decisively. It will be a big improvement in California, New York, Massachusetts, Connecticut, Illinois (particularly Chicago), D.C., Maryland, and New Jersey.

Not perfect, but it is close enough to the intent of the 2A for me. And it's a lot better than what those poor folks in California got stuck with.

[freedomcrusader]

I would add that the Federal statute says that any crime punishable by one year or more in prison is a felony (it doesn't matter a whit what your sentence actually was, it just says that if you COULD have gotten a year or more), and thus if convicted of that definition of a 'felony', you cannot ever own a firearm again. PERIOD.

That to me is an exceedingly harsh restriction on 2nd Amendment rights. And thus to simply say that the law is OK because it 'prohibits felons' from owning a firearm is glossing over this very issue.

[TheErnFormerlyKnownAsBig]

so why should the court be able to 'gag' you from your 2nd Amendment right?

Keep talking like that and we might think you are Emerson's attorney lurking around FR.

I like your reasoning here.

[monkeyshine]

the Bill of Rights originally applied only to the Federal Government, not to the states.

Yes, up until the 14th Amendment made the bill of rights a part of every states Constitution. (i think it's the 14th, maybe the 12th? I dunno, but I know it's in there!)

[45Auto]

I like your view of the RKBA; it more clearly jibes with the Founder's intent, in my opinion. I assume you have knowledge of the SC decision in Cruikshank?

[hchutch]

If this line is upheld, then we can force the battle into minutiae that will probably go our way as well.

Winning Emerson will give us command of the battlefield, and even this ruling has given us serious firepower. Sarah Brady is not going to be happy with this. Nor are Hengian, Bellesiles, or Bogus. I want to see the oppositions' press releases before I make a judgement, but I see nothing to dislike about the ruling so far.

They key is "individual right." Keep in mind that First Amendment rights have expanded (look at what Larry Flynt is allowed to get away with publishing) as time went on after the first big case. The Second will probably follow that course, even if the current line of reasoning is upheld (either through denial or cert, or by a 5-4 ruling written by Scalia, Thomas, or Rhenquist).

[gatex]

Dr. Emerson should go buy a gun made in Texas, that has not traveled in interstate commerce (Bond Arms for example ).

Since the frame is legally the "gun," he could make a frame, buy the other parts and make his own gun that has not traveled in interstate commerce.