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.
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.