American Citizen's Right to keep and bear arms is Guaranteed by Second Amendment _ Emerson Case.

Second Amendment Foundation ^ | 10.16.2001 | Dave LaCourse

[CHICAGOFARMER]

Fifth Circuit APPEALS COURT CONFIRMS THAT THE SECOND AMENDMENT PROTECTS AN INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS.

The Fifth Circuit has ruled that the Second Amendment, like all other amendments (1st, 2nd, 3rd, 4th, etc) referring to ‘the people’ in our Bill of Rights, protects the right of an individual citizen to keep and bear arms, not the state. The court has smashed a cornerstone of the anti-gun house of cards.”

BELLEVUE, WASHINGTON -– In a stunning decision, the 5th Circuit Court of Appeals in New Orleans has crushed over 60 years of judicial misinterpretation and anti-gun rhetoric by finding that the Second Amendment of the U.S. Constitution protects an individual right.

While the court’s decision in U.S. v Emerson was to reverse and remand a lower court ruling that cleared Dr. Timothy Joe Emerson of a federal violation of the 1994 Domestic Violence Act, the 5th Circuit clearly ruled that the Second Amendment guarantees the right of an individual citizen to keep and bear private arms, “regardless of whether the particular individual is then actually a member of the militia.”

Writing for the majority, Judge William Garwood noted that the government’s long-standing interpretation of the 1939 Miller case, that the Second Amendment merely expresses a “collective right” is not supported by the actual Miller decision. He further noted that, “we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment.”

“This is truly a victory for firearms civil rights,” said Dave LaCourse, public affairs director for the Second Amendment Foundation. “For years, gun control extremists and constitutional revisionists have insisted that there is no individual right to keep and bear arms. We now can say with the support of the federal court that we have been right, and they have been wrong, all along.”

Acknowledging that in his dissent, Judge Robert M. Parker noted the Second Amendment right is “subject to reasonable regulation,” LaCourse stated: “No right is absolute, not freedom of speech or the press. The Constitution does not protect slander or libel, nor does it guarantee an absolute right to practice a religion that might include human or animal sacrifice. What remains to be determined, and what we will have to continue fighting over, is the definition of ‘reasonable regulation’.”

LaCourse noted, as did the majority, that Dr. Emerson has been acquitted of all state charges relating to his case, which stems from a divorce proceeding. He was charged with violating 18 U.S.C. § 922(g)(8)(C)(ii) for having a firearm while under the conditions of a civil divorce court restraining order. District Judge Sam Cummings held that this law violated Emerson’s Second Amendment right because he had not yet been convicted of any crime.

“Whether Dr. Emerson wins on the remand or appeals and carries his case ultimately to the U.S. Supreme Court,” LaCourse said, “the fact remains that the Fifth Circuit has ruled that the Second Amendment, like all other amendments referring to ‘the people’ in our Bill of Rights, protects the right of an individual citizen, not the state. The court has smashed a cornerstone of the anti-gun house of cards.”

The Second Amendment Foundation is the nation's oldest and largest tax-exempt education, research and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. SAF previously has funded successful firearms-related suits against the cities of Los Angeles, New Haven, CT, and San Francisco on behalf of American gun owners. Current projects include a damage action lawsuit against the cities suing gun makers, an amicus brief in support of the Emerson case holding that the Second Amendment is an individual right, a lawsuit against the Clinton gun and magazine ban and a lawsuit in Cincinnati supporting the right of self-defense carry of firearms.

Please visit the best Emerson webpages at http://www.saf.org.

Read up on the Emerson Case

For Immediate Release:f
Contact: Dave LaCourse (425) 454-7012
Second Amendment Foundation
12500 NE Tenth Place · Bellevue, WA 98005
(425) 454-7012, FAX (425) 451-3959 www.saf.org
October 16, 2001

[Buffalo Head]

Good news! Thanks for the post.

[NovemberCharlie]

I totaly agree. Ashcroft can instruct his lawyers to appeal it to SCOTUS but they won't rigorously offer an argument against the case.

No, he can't. The government won, so they can't appeal. Emerson, on the other hand, can, and can spare Ashcroft the embarrasment of picking a case just so he can play to lose. Ironic.

[CHICAGOFARMER]

It is not over until the fat lady sings. American Citizens will pick this fight up and move it to the Surpreme Court in the the other Circuits.

The other Circuits do follow what the other circuits say and do.

Within 1-2 years this will be at USSC, as it is baited by the judges in the fifth.

[BOBWADE]

Did the gov't win, sounds like it was remanded and not necessarily reversed. Hard to tell without the actual order to read. I was assuming that the remand was not really a victory for anyone. Have you read the decision? can you post a transcript or link to it? I would be very interested to see it.

[nralife]

Read the decision here!

[JulieRNR21]

FYI Good News BUMP!

[GVnana]

The Constitution. Now and Forever!

[El Gato]

The government cannot appeal, since Emerson lost on appeal. Sorry. But Emerson can, but not on second amendment grounds, per se, since the 5th Circuit ruled in his favor that the second amendment protects and individual right, but that the law he's charged under does not consitutute an infringement on that right. Or rather that it constitutes a "reasonable" infringement, just as being sent to prison for say robbery does not consitute a violation of the right to liberty. I guess I disagree, since there was no real due process, although the court said the process that was followed was "due" enough. The lesson here is don't tick off your wife or signifigent other, or come to that your kids. They'll file for a "domestic violence" restraining order, and you'll lose your RKBA, although if you dispute the order you will have a stronger legal ground to stand on than if you don't.

[BOBWADE]

Thanks for the link!

[thinktwice]

How the h*ll did that happen after eight years of Clinton packing the courts?

Clinton's legacy -- The word "aberration" fits well.

[BOBWADE]

I hadn't read the decision until now. So not really a victory at all. They may not be able to chant their "no individual right" mantra anymore but are within their rights to restrict our liberties. I hope SCOTUS takes this case. I know they avoid 2nd amendment cases alot of the time.

[El Gato]

However, it only affects 5th Circuit states. The gun-grabbers will still be enforcing the federal law against men who keep guns (all woman needs to do is allege domestic violence and obtain an "ex parte" order for protection which the courts hand out like candy), without any conviction - based upon an angry wife or girlfriend's say so

That will also still be the case in the 5th circuit, since the court, while upholding the RKBA as an indivdual one protected by the second amendment, ruled that the law and the process does not infringe upon that right. It would help for the gun owner to show up in court and dispute the word of the wife, girlfriend, husband, boyfriend or whoever, since the court *might* then require a bit of evidence before issuring the order. Emerson apparently did not do this, but then he apparently did not understand that the order would kick in the "domesctic restraining order" provision of the Launtenberg law.

[68-69TonkinGulfYachtClub]

A Petition for Enforcement of the Second Amendment to the Constitution of the United States

[68-69TonkinGulfYachtClub]

ping

[Lester Moore]

The same way they twisted "the right to life" to mean abortion.

Don't get me going about legalized baby shredding!

I was having a nice evening.

But since you brought it up let me add that baby shredding is evil. And as GWB has been saying as of late, "Those that harbor evil doers are just as guilty as the evil doers."

25,000 are shredded to death every week in the U.S. How many are killed by terrorists every week?

25,000 dead shredded babies a week, week after week after week. Well over a million dead shredded babies a year, year after year after year.

Which is the greater evil, the terrorist acts or the baby shredding?

[68-69TonkinGulfYachtClub]

Time for America to do away with ALL laws that violate the 2nd amendment.

Text of the Second Amendment
"A well regulated Militia
being necessary to the security of a free State,
the right of the people to keep and bear Arms shall not be infringed."
Anyone who actually reads AND understands the 2nd Amendment
will see that there is no constitutional authority for any type of gun registration
and *there is no need for anyone to have to apply for a license to carry a gun.
*NOTE Vermont is the only state that understands this!
Any political party, politician, judge (etc), organization or individual who trys to convince you that:
1) you must register a firearm
2) you must pass a background check
3) you must wait (x) amount of days before you can get your firearm
4) you need to have a license to carry a gun
is either uneducated about OUR rights as citizens
OR is actively working to undermine OUR country.

How Did the Founders Understand the Second Amendment?

How the Brady Bill Passed (and subsequently - "Instant Check")
When the Brady Bill was passed into law on November 24, 1993,
the Senate voted on the Conference Report
and passed the Brady Bill by UNANIMOUS CONSENT.

NOT ONE SENATOR FROM EITHER PARTY VOTED AGAINST THIS
AND THE NRA HELPED DRAFT THE BRADY BILL.

[El Gato]

Did the gov't win, sounds like it was remanded and not necessarily reversed. Hard to tell without the actual order to read.

The actual order, stipped of all the justification:

"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."

But what they reversed was strictly the fifth amendment part, while stating that the Due Process Clause of the 5th deed indeed apply since the right protected by the 2nd is an individual one, but that due process was obtained and that the right could be restricted under due process, as can other rights.

[ppaul]

Unfortunately, a lot of men (and their attorneys) are clueless. They agree to "mutual" restraining orders not knowing that they just volunteered away their right to keep and bear arms. If you "agree" to an order (in other words, a court didn't issue a ruling - you settled) it cannot be appealed. You are S.O.L.

[BOBWADE]

My eyes are crossed from reading all that legaleze! But I think I get it now. They reversed the dropping of charges and denied his review of the other grounds he was seeking. Sounds like guilty until proven innocent for gun owners going thru a divorce.

[MistyCA]

Ok, so tell me....how does this affect what that doo-doo brain Governor in California just did by signing into law a new bill which says gun owners in California must be licensed?