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.
Speaking of which, Tench Coxe observed:
"Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."
I invite the US Senators from New York to stick that in their pipes and smoke it.
(By the way, it is encouraging to see the court cite St George Tucker and William Rawle with regard to the Second Amendment. Perhaps they will one day concur with the gentlemen’s equally sensible opinions regarding the Tenth Amendment… ;>)
The 5th Circuit Court had no authority to overrule US v. Miller, the 1939 gun-control case that started all this silliness in a huge travesty of justice. The defense didn't even show up for that trial, so the justices had no choice but to rubber-stamp the arguments of the anti-gun prosecutors into an Opinion. And part of it said that there WERE certain circumstances where the govt could restrict gun ownership.
Since the 5th Circuit couldn't overrule it, they had to render an opinion that obeyed it.
But in this present case, since Emerson "lost", he can appeal this to the Supreme Court, who CAN overturn US v. Miller.
This outcome is the best it can possibly be for those who believe in the Constitution.
If the 5th Circuit had ruled that the Lautenberg Amendment was unconstitutional and that Emerson won, then it would be up to the Fed to appeal to the Supreme Court... and they would have dropped it like a hot potato. No way do they want a court whose majority obeys the Constitution, to decide this case.
But, since Emerson technically lost the case, it's up to HIM to appeal it. And he'll be rarin' to go. Plus, the 5th Circuit has all but written his brief for him, handing him 66 pages of arguments why the 2nd amendment means exactly what it says:
"Since a well armed and trained populace is necessary for the security of a free country, the right of ordinary people to own and carry guns shall not be taken away or restricted."
Yep, the 5th Circuit had to put a little dent in it, saying that the govt could restrict certain people. No other way could they guarantee it would go to the Supreme Court. But they left it wide open for THEMSELVES to be overruled, packing in as much pro-gun-rights material into their own written opinion at the same time.
Little-Acorn
In these posts, there are numerous references to dicta.
Dicta is simply an observation intended or regarded as authoritative and does not carry the full weight as a direct ruling or holding from the court.
From Page 44 of the opinion there is:
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D. Second Amendment protects individual rights
We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller. However, because of our holding that section 922(g)(8), as applied to Emerson, does not infringe his individual rights under the Second Amendment we will not now further elaborate as to the exact scope of all Second Amendment rights.
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In other words, the 5th Circuit Court of Appeals held that the Second Amendment "protects the right of individuals ... " and this, in my humble opinion, is a holding, not just dicta!
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.
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