Posted on 10/16/2001 8:45:52 PM PDT by 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.
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
The standards of evidence required in a restraining-order hearing are below those required in a civil-damages case, and far below those required in a criminal case. Indeed, this low standard would not be a bad thing if the restraining order simply meant that the recipient had to stay away from someplace he had no particular right to be anyway (e.g. in cases where the person seeking the order was the sole tenant or owner of her dwelling). Since an order in such case would not infringe upon the recipient's liberties, there would be no due-process requirement before imposing it.
The Court here has acknowledged that enforcement of the Lautenberg Act would indeed infringe upon the civil liberties of those served with restraining orders. What I find untenable is the notion that the process for getting a restraining order, the standards for which were set low because no civil liberties were involved, constitutes sufficient due-process to justify indefinite abridgement of someone's civil liberties. That is just plain absurd.
I can't understand why some people like this ruling. To me, it says "the Second Amendment protects the right of the people--ordinary citizens--to keep and bear arms, without restriction, except when the government deems that they shouldn't". I can't see how that's a good thing.
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.
First of all, it's not uncommon for someone who is an agressor to seek a completely-unjustified restraining order as a means of attacking the other person. Consider as well that a man who wishes to attack a woman but is afraid she might be armed can now file a restraining order against her so she'll be disarmed when he attacks. Even if the man wouldn't otherwise think to try this, it's SOP in many cases for restraining orders to almost automatically be made mutual. So a woman who files a restraining order against a man is apt not only to make him mad, but to leave herself defenseless when he seeks revenge.
Also, how long do you think it will be before groups start offering 'incentives' to encourage [supposedly] 'victimized' women to come forward against evil gun-loving former acquaintances?
How is this a victory? The Court has ruled that even though there is a Second Amendment right to keep and bear arms, such right only applies insofar as the government can't claim its restrictions are "reasonable", and such rights may be forfeited without any substantive due process.
That's covered by the Thirteenth Amendment, if you read it closely. Note that the same rationale allows for disarming convicted criminals. Emerson, however, was never convicted of anything. On what basis, then, should he not have the rights of a free person?
I can't understand why some people like this ruling. To me, it says "the Second Amendment protects the right of the people--ordinary citizens--to keep and bear arms, without restriction, except when the government deems that they shouldn't".I can't see how that's a good thing.Bingo!
I was only explaining, not agreeing. When I post from work I have to keep the size down and much ranting got deleted from that post in order to get it through. In general I aggree, the standard in a restraining order case is much too low for denial of a fundamental right. Of course the divorce court never applied that restraint, only the federal law does that. Perhaps the 5th circuit found itself bound by precident on this issue, and was setting up an appeal to the Supreme Court so that it could take another look at that precident? Haven't read the whole thing even yet, so that's only a WAG.
But if it goes there on appeal of this decision, it won't be on second amendment grounds, not directly anyway. The court might not take too kindly to the 5th's low standard of due process for deprivation of a fundamental, that is explicitly protected, right. We can only hope.
It's a victory because finally there's language recognizing the 2nd as an individual right, like many of us have believed (correctly) all along. Up until now, the 2nd was seen legally as something of a collective right.It remains to be seen what constitutes a "reasonable" government restriction on one's 2nd Amendment rights, but such muddiness in the face of absolute language isn't necessarily to be feared. The "Congress shall make no law" aspect of the 1st is, when dealing with speech, routinely read to permit prosecution for libel, for example.
Like every other story, there has to be a beginning, and as far as I have found (with much help from the Second Amendment Law Library) the story begins with the Virginia Bill of Rights.
Pennsylvania appears to have been the first colony to have used the phrase "A right to bear arms"
7. That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.
"Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion. —
"Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power."
"That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;"
Editor's Note: The North Carolina Convention met from July 21 through August 4, 1788, but after debate agreed only to neither ratify or reject the Constitution, but did adopt a resolution containing a Declaration of Rights and a list of proposed Amendments to the Constitution on August 2, 1788. After the Constitution had been ratified by a sufficient number of states, the members of the convention reconvened and, apparently without further debate, ratified the Constitution November 21, 1789, and announced the Declaration below, which includes the resolution of August 2, 1788.
"17th. That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people, trained to arms, is the proper, natural and safe defence of a free state. That standing armies in time of peace are dangerous to Liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to, and governed by the civil power.
"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."
""A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms."
"A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person."
"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."
"Article the fourth . . . 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."
Twelve amendments were proposed, and ten adopted, effective December 15, 1791. Those ten became known as the Bill of Rights, and their ratification is celebrated as Bill of Rights Day.
The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.
Article the fourth [Amendment II]
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.
Another good article is: The Second Amendment and the Historiography of the Bill of Rights by David T. Hardy
I wish Gov. Davis (Calif) would realize this.
HOO-RAH!
Any idea of how a case could reach a Federal court where this decision could be rendered? I guess someone would just have to plain challenge the law after being charged?
No, but when you get arrested, you can have your defense cite this case in court and see what the court says.
I doubt this rulling will be used to overturn any State gun control laws, since "reasonable infringement" seems to be the key. The courts will always say that whatever regulations, as long as someone can buy a gun, are not unreasonable.
I thought people were protected from double jeopardy. It must not have been an argument about guilt of the person but about usage of the law by law enforcement. The media is very vague about this.
Go Bret GO!
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