Replies

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.

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.

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 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?

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.

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?

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.

Well, here's hoping that Emerson can appeal to the Supremes on one or both of:


1 whether due process was followed;

2 whether the exclusion by the 5th of his case
  from coverage by the 2nd was appropriate.

On (1), I can just imagine Emerson showing up for the hearing and clamoring about the 2nd Amendment in a divorce restraining order hearing. Sure as shooting, wouldn't the judge have dismissed the argument as "irrelevant" and proceeded with issuing the restraining order with impunity, knowing there would be little reasonable expectation of a review of the order? Would it not have been "contempt of court" if Emerson had insisted?

On (2), there seems to exist a potential strategy for the Supreme Court to duck the issue of the 2nd Amendment and focus on the question of the process inversion whereby a lower-standard hearing can result in the infringement of a basic right, treating the Second Amendment issue implicitly as having already been decided (res judicata).

(IANAL...)

As a side note, the rabidly anti-gun San Jose Mercury News did not carry the Emerson Appeal decision.