Since the original charge against Emerson has been dropped, it doesn't appear likely now that that this decision will be appealed to the USSC as I had hoped it would, and even less likely that it would be accepted. But at least one high federal court has given it's opinion that the 2nd amendment protects an individual right.
Michael Barone is right about the landmark potential of this ruling.
;^)
Cheap shot Michael. Emerson was aquited of the charges brought against him by his wife concerning endangerment. The jury figured she was just throwing stuff at him to destroy his standing.
Clayton Cramer's theory re: Emerson...interesting!From Clayton (noted 2nd Amendment historian, author of "Racist Roots Of Gun Control" and the best critiques of "Arming America"):
--------------
The more I think about what the decision found, the more I wonder if the two judges who wrote the opinion had something a little deeper in mind.
There were at least four possible outcomes, depending on how they handled the two separate questions of:
1. Does the 2nd Amendment protect an individual right? YES/NO
2. Was the federal statute a violation of that right? YES/NO
Consider if they had given Emerson a straight victory: YES to both questions. The federal government would clearly need to appeal the decision to keep the federal statute in effect, and because the question of the constitutionality of the federal statute is tied up with the question of whether the 2nd Amendment protected an individual right, they would have had to make a strong effort to prove the 2nd Amendment wasn't an individual right.
What if they decided NO to both questions? Emerson would need to appeal, but without a circuit split, the Supreme Court would have little need to hear the case.
What if they decided NO the 2nd Amendment question, but YES to the unconstitutionality of the federal law based on some other grounds (such as lack of authority because it doesn't affect interstate commerce -- the point that Garwood was clearly raising oral arguments)? The federal government would appeal to the Supreme Court, but the 2nd Amendment question wouldn't even come up.
Doing it as YES and NO means that Emerson has a strong personal reason to appeal (to avoid going to prison); the circuit split about the 2nd Amendment means that the Supreme Court has very good reason to hear the appeal; the federal government can present a weak argument about whether the 2nd Amendment protects an individual right (perhaps even conceding that point, since Emerson didn't find the federal statute to be unconstitutional), and concentrate its energy on justifying the federal statute as a legitimate exercise of governmental authority.
Maybe Judge Garwood isn't just smart; maybe he's clever, too.
--Clayton E. Cramer Software Engineer by Day, Historian by Night
clayton.cramer@callatg.com
NEW: http://www.claytoncramer.com to see excerpts from my five published books and full text of a number of scholarly and popular articles.
--------------Jim again.
I had a brief conversation with attorney Peter Mancus yesterday, who already had an opinion very close to this without having discussed it with Clayton.
Iiiiiiiinteresting.
__________________
Jim March