[Pitchfork]

You're right. Miller allows only non-militia weapons to be regulated and therefore the whole of the 5th circut's assertion about a individual right turns on the definition of what consitutes a militia or 'the people'. Oddly the ruling makes little mention of past cases that have defined the militia as the national gaurd--I wonder how they can do that?

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!

[ctdonath2]

Fear not. The 5th Circuit has separated two issues, clarified one (RKBA is _individual_), and polished up the other (due process suspention of rights) for appeal. While not quite as satisfying now, they've prepared things for a much better solution.

[monkeyshine]

Yes, I agree a lot with your assessment. A boilerplate order should not withstand the test of 'reasonableness' with regard to enumerated rights or any other right for that matter. Yet In this particular case, with threats on the record by credible witnesses (the police) that he would commit violence against his wife and/or her boyfriend, I think that a finding of fact would have been warranted and that the state would probably prevail.

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.