Emerson Petitions SCOTUS: Will the Court Take His Case?

On October 16, 2001 a three-judge panel of the Fifth Circuit Court of Appeals handed down its decision in United States v. Emerson. The majority ruled - Judge William Garwood (Reagan appointee) writing, Judge Harold DeMoss, Jr. (Bush I appointee) concurring - the Second Amendment's right to keep and bear firearms refers to a constitutionally protected individual right, not a right of the states to maintain militias. As expected Judge Robert Parker (Clinton appointee), in a minority opinion, basically reiterated the "collective right" interpretation of the Second Amendment (see below).

Notwithstanding the wonderful news, this was a "mixed decision": the Court reversed and remanded the Emerson case back to federal district court for retrial. Although the majority recognized the right to keep and bear arms as a personal right, it was not prepared to concur with the opinion of U.S. District Court Judge Sam Cummings (Reagan appointee) that 18 U.S.C., §922(g)(h) - a federal statute criminalizing possession of firearms while under a restraining order -- is unconstitutional on Fifth Amendment due process grounds.

Some background on this vital case, courtesy of a press release from the Brady Center, formerly Handgun Control, Inc. - which is extremely unhappy with the Fifth Circuit's ruling, now that it's binding federal law within the jurisdictions of Louisiana, Mississippi, and Texas:

"[Dr.] Timothy Joe Emerson was subject to a domestic violence restraining order that required him not to come near his estranged wife or her young daughter, and was therefore prohibited by federal law, 18 U.S.C. §922(g)(8), from possessing a firearm. He was indicted for violating that provision after an incident in which he allegedly threatened his wife with a Beretta pistol and pointed it at her child. Judge Samuel Cummings of the U.S. District Court for the Northern District of Texas dismissed the indictment and ruled that the federal law denying guns to those under restraining orders is an unconstitutional infringement of the Second Amendment."

The Reno Justice department appealed. (Rumor has it Assistant U.S. Attorney William Mateja, who represented the government before the Fifth Circuit, doesn't have much of a future with the Ashcroft Justice department these days: He was expecting a promotion, which he pointedly did not get.)

The "Collective Right" Interpretation
The Brady Center's Dennis Henigan explains the substance of the case Mateja presented on appeal:

"In concluding that the Second Amendment confers an individual right to firearm possession unrelated to militia service, Judge Cummings directly contradicted clear rulings of the U.S. Supreme Court and every other federal and state court that has ever considered the issue. All other courts have unanimously agreed that the Second Amendment's plain language and history confirm its purpose is merely to preserve to the states their security and freedom by means of a well-regulated militia. A number of other federal district and appellate courts have decided Second Amendment cases since Judge Cummings issued his decision in Emerson, and none has followed his misguided lead."

Arguably, this assessment is both tendentious and misleading. David Kopel, law professor, University of Tennessee, rebuts Mr. Henigan's understanding of the matter thusly:

"…United States v. Emerson…recognized that the Second Amendment to the U.S. Constitution guarantees individuals a right to own guns…. It might seem surprising that such a decision would be controversial; polls routinely indicate that a large majority of citizens believe they have a constitutional right to own a gun, and the language of the Second Amendment itself would seem to support that belief. Yet, in the second half of the 20th century, the notion of a right to arms under the Second Amendment got little respect among the chattering classes.

"In the 1960s and 1970s, we were often told that the Second Amendment didn't protect a right of individuals to own guns, but rather only a 'collective right' of the states to have militias…. Like collective property in a Communist country, the 'collective' Second Amendment right belonged to everyone at once in theory, but only to the government in practice, and [this understanding is] thus a nullity - the opposite of a genuine right."

Timothy Joe's Turn to Appeal
Dr. Emerson filed both a petition for rehearing and for rehearing en banc on November 13, 2001, on grounds that the Fifth Circuit's decision was "flawed inasmuch as it is incomplete and applies the incorrect standard for determining whether a statute infringes upon a right of constitutional magnitude. It has long been the case that when a fundamental right has been trod upon by legislative enactment, either by a State or by Congress, the federal judiciary will subject such an enactment to strict scrutiny, allowing it to stand only if: (1) it is narrowly tailored, and (2) serves a compelling governmental interest…. In the case at bar, the Court properly found that the Second Amendment protects an individual right, but despite the Constitutional origin of the right, the Court did not subject 18 U.S.C. §922(g)(8) to strict scrutiny. The Court instead applied a 'reasonable restriction' standard that appears to be akin to the 'rational basis' standard applied to statutes that restrict non-fundamental rights."

The Right and Wrong Way to "Infringe"
Emerson appears to be arguing that the government may not infringe a right of "constitutional magnitude" - the fundamental right to keep and bear personal arms - using prior restraint without a showing of reasonable suspicion or probable cause. No one is arguing that the right to keep and bear arms is an absolute right. But in order for the government to infringe the right, it must do so on a case-by-case basis, and it must have a specific and compelling reason for doing so. On this line of reasoning, a "blanket" restraint of the type represented by 18 U.S.C. §922(g)(8) is facially unconstitutional with respect to the fundamental right it seeks to infringe.

We must not forget that the rights protected in the Bill of Rights are not grants of the federal government. The government did not confer them on us; neither may it take them away from us without compelling reasons and individual due process.

And while we're at it, let's also not forget, the jist of the Emerson dispute and its ramifications historically have been considered matters of compelling state, not federal, interest (e.g., domestic relations, divorce, child protection).

The Fifth Circuit denied both petitions for rehearing on November 30, 2001. So, as expected….

Emerson Turns to a "Higher Authority"
On February 26, 2002, Emerson petitioned the U.S. Supreme Court to review the case.

One, no it won't, because the Fifth Circuit didn't find 18 U.S.C., § 922(g)(h) to be unconstitutional, so there's nothing for it to review.

Two, yes it will, because we now have a situation where federal law varies from jurisdiction to jurisdiction. Remember, Circuit Court of Appeals rulings bind only the courts within the Circuit's geographical territory. The Fifth Circuit is only one of ten circuits. In three states the right to keep and bear arms has been found to be a constitutionally grounded and protected personal right; in the other 47, the meaning of the Second Amendment is still up in the air. Only a Supreme Court ruling can provide uniformity of law in all 50 states.

Personally, I have a hunch the Supremes will take this case. But we'll just have to wait and see.

Congratulations on an extremely well-conceived, well-reasoned, and well-written piece!

I couldn't agree more, b-b.

Chris and I both lost our beloved Dads within a couple of weeks time at the end of last year. And we were both designated executors of our Dads' estates. We not only compared notes regarding the loss of the two men who were the greatest influences in our lives, but we also compared notes as to how the state of Pennsylvania profits through its unconstitutional (both state and federal) inheritance tax.

Chris's article in the Trib-Review really encapsulates the obscenity known as the Pennsylvania Inheritance Tax, in that the tax defies the uniformity on the same class of subjects clause of the PA Constitution. The tax also smacks of social engineering in that its historical foundation is an attempt to move concentrations of wealth in future generations so as to create, through government dictate, more economic parity. The fourth and fifth amendments to the US Constitution are also assaulted through this tax, since provisions in it come very close to (if not define) unreasonable search and seizure, and the requirement to self-incrimination.

Chris hits all bases in his article. It would be nice if some of our state legislators would read it, and take it to heart. They need not wait for the courts to declare the tax unconstitutional (not that such a logical step is even in the works). A simple repeal is in order. But, being the realists that we are, Chris and I are not holding our mutual breaths awaiting that particular turn of events....yet he is being about as pro-active in this regard as a citizen of the commonwealth can be, having done much research into the subject, and written so eloquently regarding his findings.

The tax also smacks of social engineering in that its historical foundation is an attempt to move concentrations of wealth in future generations so as to create, through government dictate, more economic parity.

joanie-f, Dukie, so sorry to hear about your loss of your Dad. My heartfelt condolences.

joanie-f, you nail the single most egregious thing about inheritance taxation in the above italics, IMHO. Yet hardly anybody ever questions this. Somehow or other, we are conditioned to believe that the idea of social engineering in the name of (somebody's strange idea of) "social justice" is just a dandy thing. At least, we don't bother to object.

But think about it!!! In the first place, what is the basis of the assumption that to run wealth through the hands of politicians serves "social justice" any better than to leave that wealth in private hands -- subject to private decision making and market forces? An heir could invest his inheritance profitably, creating economic opportunities for others beyond himself -- jobs. Or he could squander his inheritance altogether -- which has the same effect.

What I want to know is: Who really owns the inherited property? The decedent's estate? The heir? or the government? The surest test of title is who has the power of conversion of the underlying property. If the government -- federal or state -- can force the conversion -- i.e., the sale -- of property to satisfy a tax lien -- and can set the rate of tax unilaterally, and impose it unequally -- then doesn't the government effectively own it? I mean, they might let you keep a bit of what you thought was yours. And isn't that nice.

Then you've got to wonder -- where is the constitutional authority for the government to treat people differently? I thought we were a system of equal justice under law, not a system of equal results. The government has absolutely zero authority to be in the so-called "social justice" business, which means classifying citizens into groups, advantaging some and disadvantaging others. But the government cannot be in the business of picking winners and losers, and trying to deliver certain outcomes. It's in the "means business," not the "ends business."

Whatta nightmare! Why do we put up with it? Just wondering. All my best, bb.

Betty, your comments are excellent.

So much of the focus of domestic/social government policy in modern America (as opposed to the vision that the founders had, and for which they sacrificed mightily) is based on an extremely convoluted notion of equality.

We all know that the founders' concept of equality amounted to the simple (and yet so meaningful) idea that all men are created equal, and are endowed with certain unalienable rights. There is where their notion of equality ended (and wisely and brilliantly so).

We were created equal, and all possess the right to live, to exercise freedom of choice, and to pursue (within moral bounds) whatever it is that we define as personal happiness. Nowhere in the founders' vision was there the concept of grotesque, restrictive government interference aimed at maintaining an eternally level playing field for all Americans, no matter the amount of sacrifice or work (or resulting achievement) they (do or do not) expend. Nowhere did the founders envision (as a matter of fact, they painstakingly declared an enemy of the people) a 'Robin Hood' system of governance which seeks economic parity among its citizens by taking from the haves and distributing the legislatively-stolen bounty to the have nots. Penalizing the citizen's (and his progeny's) ability to accumulate wealth, and experience economic independence through his own achievement, by redistributing that wealth to his less ambitious, or less adventuresome, countrymen has become the American way. Mom and apple pie have been replaced by Big Brother and trough-feeding.

So many facets of the abomination known as the IRS code, the countless federal and state entitlement programs, and taxes (on inheritance, principal, or property) such as the one we have been discussing here are aimed at nothing but parity through government-inspired social engineering. And sadder even than the unconstitutionality of such a concept is the long-term effect that such government meddling has on the work ethic, business entrepreneur-ship, propensity to save, and desire to achieve and excel of the average American citizen.

Of course there will always be those who are willing to venture, to work, and to achieve. It's just the innate nature of those who know and appreciate the sense of accomplishment of a job well done, or the satisfaction of investing (sometimes a lifetime of) time and effort in a worthwhile endeavor. That person's achievement will not be thwarted by government dictates. But the fact that his government does not allow him to reap the fruits of his own labor is an abomination....and an abomination of the kind that the founders warned us so strongly against committing, lest we run the risk of inviting the kind of social/economic/moral decay that has sometimes heralded the fall of once-mighty empires.

Mom and apple pie have been replaced by Big Brother and trough-feeding.
... So many facets of the abomination ... are aimed at nothing but parity through government-inspired social engineering. And sadder even than the unconstitutionality of such a concept is the long-term effect that such government meddling has on the work ethic, business entrepreneur-ship, propensity to save, and desire to achieve and excel of the average American citizen....

[A] person's achievement will not be thwarted by government dictates. But the fact that his government does not allow him to reap the fruits of his own labor is an abomination....and an abomination of the kind that the founders warned us so strongly against committing, lest we run the risk of inviting the kind of social/economic/moral decay that has sometimes heralded the fall of once-mighty empires.

Well, I guess social/economic/moral decay is what you inevitably get from a "through-feeding" ethic made socially dominant.

The moral philosophy that "made" America has been obviated by (taxpayer-financed) personal irresponsibility and moral relativism. Boil it all down, that's precisely what the government "invests" our hard-earned tax dollars in, "for us."

America guarantees equality of opportunity, not equality of results. To reverse this understanding is to lose the core idea that has made America great. That idea has been attractive enough for tens of millions of immigrants, who (historically, at least) didn't come here to get taxpayer-financed freebies, but to have a chance to work and save and raise their families in freedom.

But we Americans seem to have swapped our freedom for a mess of politically-correct pottage. Shame on us for allowing this to happen.

And yes, that "government does not allow him to reap the fruits of his own labor is an abomination." Worse, it's systematic, "legalized larceny." Government at all levels increasingly seems to be running a protection racket these days.

Excellent essay, joanie-f. Thank you so much for writing. All my best, bb.

A few years ago Americans were willing to listen to a president discuss the meaning of "is" as [if] he were at a Modern Language Association meeting. September 11 showed us the face of pure evil. Our nation has seen the enemy plainly, and that vision may be the beginning of the end of postmodernism in America. It is no coincidence that the places in America which have been the most reluctant to call al Qaeda evil have been the places where postmodernism is strongest.
The rest of America has, happily, finally mustered the self-confidence to stand up to this form of radical nihilism.
We will continue to debate the nature of language and of the subatomic, and we will continue to tolerate and celebrate diverse cultures. We can do all of these things without teaching college students (including foreign students who may one day rule their homeland) that living as a serf under the tyranny of Wahhabis, Nazis, or Stalinists is more authentically human than living as a free American.
George Bush is our first post-postmodern president. He can't tell Heisenberg from Heidegger but, unlike them, he can tell right from wrong:
["]It is always and everywhere wrong to target and kill the innocent. It is always and everywhere wrong to be cruel and hateful, to enslave and oppress. It is always and everywhere right to be kind and just, to protect the lives of others, and to lay down your life for a friend.["]

Postmodernism is on its way to the ash heap of history.

beckett, I finally had a chance to go read some Glenn Reynolds at the INSTAPUNDIT site you linked me to above. What a great find!

WRT the above italics: Hopeful signs, indeed. There may well be a "silver lining" in the tragic horror of 9-11 and its sequelae now unfolding in the Middle East. The President gives every indication of firmly possessing a moral center, a moral vision that is sorely needed in the world right now. In today's world, that's like having a target pinned to your backside, or a "kick-me" sign. But I'll put my money on him, and not on the raving postmodernist lunatics who hate the West and all it stands for. (I thought his characterization of Osama bin Laden as a "postmodernist" rather than as some kind of atavistic, pre-modernist "savage" was fascinating....)

Thanks so much for pointing me to a great website -- and a very fine thinker in Glenn Reynolds. All my very best -- bb.

Just to catch up with recent events. As you probably already know, the United States government filed its brief on May 6 “for the United States in opposition” to Timothy Joe Emerson’s Petition for a Writ of Certiorari to the Supreme Court of the United States.

That is, the government has entered a brief requesting that the Supreme Court not hear an appeal from the Fifth Circuit Court’s ruling in the Emerson matter, which reversed and remanded a decision of a federal circuit court judge.

Which, if SCOTUS sees it the way the Justice Department does, would mean Dr. Emerson would have to go back to “square one,” to federal court. Mind you, Emerson already had been acquitted in state court on the business that got this whole mess started. It was only through the good offices of the ex-Mrs. Emerson that made this "a federal case."

Yet, if SCOTUS decides not to enter this case, Emerson would be remanded, retried on felony gun possession under federal statute 18 USC 922 (g) (8). And the RKBA/reasonable regulation issue would never be surfaced, communicated, freely deliberated, let alone decided in the name of the people, who are supposedly in charge of this whole regime; and of/by/for/to whose interest the regime is supposedly constituted in the first place.

Not to mention that federal District Court Judge Samuel Cummings – who wrote an absolutely brilliant and trenchantly researched opinion on the RKBA as a personal right -- would be effectively, “officially disgraced” by the Supreme Court under this set of facts. Which would prove inconsistent with the Justice Department’s recent declaration of the Second Amendment as pertaining to an individual liberty.

[Personally, Judge Cummings is a judge I’d dearly love to see promoted to a higher bench. To make an “outcast” or “outlaw” of Judge Cummings would establish a terrible precedent, IMHO, a serious loss for individual constitutional liberties. (Plus I hear there are all kinds of vacancies these days, in the Appeals courts especially. Thanks to the Democrat-controlled Senate.]

Mind you, Emerson already had been acquitted in state court on the business that got this whole mess started. (Possible Tenth Amendment claims hanging in the wings here….)

But I digress. Let’s go to some basic facts, and then to the relevant timeline:

FACTS:
(1) Attorney General John Ashcroft had a nasty confirmation hearing before the Senate, in which he swore to uphold the laws of the land as written. Fortunately there were enough honorable Democrats in that body at the time who, notwithstanding their unfortunate party connection, could see that the man really meant what he said, and so helped confirm him to office.

(2) The Emerson case is a Reno Justice Department case; that is, a Bill Clinton case. Neither Reno, nor Clinton, nor the Democrat party at large have demonstrated any particular concern about the niceties of constitutional law in recent times. So much so that they have not hesitated in the least from passing laws depriving individual citizens of their constitutional right to keep and bear arms – a right founded, not in a government grant, not in a positive law, but in the nature of the basic requirements of a human person living in reality. This class of low-lifes is what got us numerous federal judges who seem to view the U.S. Constitution as an encumbrance to the establishment of a “better order” for human social and civil life. But what this “better order” is supposed to be – that is what is always left perfectly vague.

(3) This is the “mess” Ashcroft inherited. Coming “into the stream” of established “constitutional reality,” given the political circumstances, he swore before the Senate to uphold federal law as he found it.

And I think he has paid his debt to that principle. Consider:

Timeline:

(1) Timothy Joe’s (seemingly deranged) wife Sacha decides to have a fling with her hairdresser (c. 1988) then decides to divorce Timothy Joe. (I gather Sacha is now married to the hairdresser.)

(2) Unsurprisingly, Timothy Joe is not exactly ecstatic about this news.

"No one would care" about what Tim-Joe thinks, except for the fact that sometime in 1988, he had purchased a Beretta pistol – to add to his extensive gun collection of over 25 pieces by then. When he bought said Beretta pistol (which he kept in the desk of his professional medical office) he signed an ATF form which stated, in “mouse type” of some 4- or 5-point size – that he “duly” understood that he may not legally possess a firearm while under a domestic (restraining) order, according to federal law. By signing this form, Emerson – if he ever read the footnote diligently in the first place, and could have been reasonably expected to remember its actual text for very long thereafterwards – seemingly sealed his fate as a citizen of the United States of America – at least that version thereof which seems to be so popular with the “bookmakers” these days.

Must take a breather for now. Will have to get on with the Timeline – and its significance and various ramifications – later.

This snake has got a lot of twists and turns....

Just want to leave you with a thought: From such soap-opera banalities as this do “federal cases” arise every now and then. I feel like I’m presenting “soap opera” here. Tell you what – that’s probably calling it pretty close to home!

Part 2 tomorrow if anyone feels like coming…. Best, bb.

To continue with Part II of our “soap opera” [If you don’t have time for "soaps," skip on down to the “ * * * * * * * ” below): In connection with the divorce proceedings, the state court conducted an evidentiary hearing to establish whether or not Dr. Emerson was a threat to anyone. Sacha alleged he had threatened to kill her boyfriend. The court issued an order in September that included such routine matters as prohibiting Emerson from disposing of any of the marital property, as well as prohibiting him from taking “unlawful action against any person.” Emerson was not advised by the state court judge that he was criminally liable under federal statute for possessing firearms while under such order, that he later argued were part of the marital property that he was forbidden to dispose of in any case.

Then, in November, The Big Incident. Sacha got into an altercation with Emerson at his medical office. Emerson asked her to leave, but she refused. So he allegedly pulled out his Beretta from a desk drawer, and Sacha claimed he pointed it at her and threatened both her and their young child with it.

Sacha then went to the federal authorities, and a federal grand jury eventually indicted Emerson for felony possession of a firearm while under a restraining order, in violation of 18 U.S.C. 922(g) (8), which holds that “specified categories” of persons may not “ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.” Being under a divorce-related restraining order, Emerson was a person who fell into such a “specified category.” So off to federal district court he went.

Emerson presented four main lines of argument in his defense: In a nutshell, he relied on the Second, Fifth, and Tenth Amendments, plus a critique of Article I, Section 8’s Commerce Clause. Judge Cummings upheld Emerson on Second and Fifth Amendment grounds, but did not find for the Tenth and Commerce Clause claims. The judge exonerated Emerson, and declared that 18 U.S.C. 922(g) (8) was unconstitutional on both Second and Fifth Amendment grounds.

The federal government appealed. The Fifth Circuit Court of Appeals eventually reversed Judge Cumming’s decision, and remanded the Emerson case back to federal district court for retrial. But not before concurring with Judge Cummings’ extensive analysis of the Second Amendment as pertaining to an individual right, not the right of states to organize militias. The three-judge panel simply held that the individual right is subject to reasonable regulation; that is, “limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to keep and bear their private arms as historically understood in this country.” And they found that 18 U.S.C. 922(g) (8) was not inconsistent with these criteria -- “though likely barely so,” as Judge Garwood wrote for the Fifth Circuit majority.

Emerson petitioned for rehearing before the three-judge panel, as well as rehearing en banc last November. He was turned down both times.

So, this past February, he petitioned the Supreme Court for a Writ of Certiorari. The deadline for briefs was May 6th. The federal government went right down to the wire on submitting its brief, arguing that the Supreme Court should not grant cert to Emerson – i.e., not hear his appeal. The government wants Emerson to go back to district court; and then, if he loses there, to go the appeals route one more time if he wants to.

* * * * * * *

Clearly, the Ashcroft Justice Department is delivering on its promise to uphold the laws of the land as they are already on the books, as well as the standard, prevailing judicial procedures. For instance, Emerson’s appeal to SCOTUS, in addition to the Second and Fifth Amendment claims, reintroduces the question of whether the federal statute that incriminated him is “a permissible exercise of congressional power under the Commerce Clause” – which apparently was not specifically an issue before the Fifth Circuit. Plus shades of the Tenth Amendment seem to be creeping back into the Emerson case – again, an issue not treated in appeals court. Therefore, the Justice Department argues that Emerson may not reintroduce these issues at this time, and the Court should decline to hear him.

But it strikes me there are a couple of odd things going on with the government’s brief – or I should say, briefs: It sent up two briefs together, Emerson, and Haney – a machine-gun possession case heard on appeal by the Tenth Circuit (Haney lost). The Tenth Circuit holds with the corporate right theory of the Second, where the Fifth holds to the individual right construction. But as the government says in its Haney brief, “Although the courts of appeals are in disagreement concerning the abstract question [sic] whether the Second Amendment protects an individual right to bear arms for reasons unrelated to militia service, no circuit conflict exists on the constitutionality of 18 U.S.C. 922(o) [machine gun ban] or any other firearms prohibition contained within Section 922 [including the one Emerson ran afoul of].”

Therefore, Haney can’t shop for a “better venue” – the Fifth Circuit, like the Tenth, finds no problem with the constitutionality of the 18 U.S.C. 922.

What puzzles me about the Emerson brief, is that it seems the federal government itself is taking pains to make us understand that the constitutionality of federal gun legislation is premised solely on the Commerce Clause. Without the Commerce Clause, there is no other apparent constitutional warrant for congressional action in the area of gun legislation. The government cites Scarborough v. United States (1977): “The Court explained…that a stricter nexus requirement would disserve congressional intent because ‘Congress was not particularly concerned with the impact of commerce except as a means to insure the constitutionality of’ the provision (i.e., that “proof that a firearm had previously traveled in interstate commerce was sufficient to establish the jurisdictional element of the felon-in-possession statute.”

I’m no lawyer, and sure don’t think like one. Still I would love to understand how a constitutional warrant to Congress to regulate interstate commerce – to regulate cross-border exchanges of goods and services – logically extends to the way those goods and services are used by their purchasers after they are acquired. It seems to me that a warrant to regulate commerce means to regulate commercial transactions, not to regulate private behavior respecting the use of products and services after they were acquired. The two areas – the transactional and the behavioral -- strike me as being substantially unconnected. But Congress’ warrant to regulate firearms derives from its willingness to conflate the two, given its apparent refusal to make any distinction between them.

Of course, the constitutionality of 18 U.S.C. 922(g) (8) [and 922(o)] rests solely on the Commerce Clause. On the one hand, the government’s Emerson brief seems to argue that this situation is “moot,” and need not be revisited by the Court. On the other, it seems rather odd to me that this brief would take such pains to make sure we see what a slender reed “gun control” really rests on, constitutionally speaking. Especially when Bill of Rights provisions are made to take a “back seat” to congressional activism fueled by an overly expansive definition of congressional powers, seeking to deal with “groups”.

It seems logical to me that an individual right cannot be lost simply because one has been arbitrarily assigned to some congressionally-created “group” or “category.” It seems to me an individual “right” can only be “lost” (to whatever extent its can be lost) if there has been an individual “wrong.” And the government is required to prove the wrong, under the presumption of innocence until it does so, according to Due Process – which under the Constitution can never pertain to any group entity of whatever description, but only to persons: Due Process is an individual right, just as is the individual RKBA. The Constitution itself guarantees this.

Well I’ve belabored you enuf with this too-long and too rambling speculation. To close, I really can’t decide whether the Justice Department really wants the Supreme Court to reject Emerson’s petition for cert (which is what they say they want), or whether it’s really aiding and abetting the Court to grant Emerson cert. Guess we’ll just have to wait and see what happens next. Best to all, bb.

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