Posted on 05/11/2002 10:23:17 AM PDT by forest
Quite a number of us have been following the U.S. v. Emerson case pertaining to the Second Amendment. Therein, the federal trial court judge wrote one of the finest decisions ever to come out of a federal criminal court -- which tracked perfectly with the original intent of all of the Founding Fathers when they approved the Constitution and later the Bill of Rights.
However, the decision was appealed.
Alas, although the Fifth Circuit Court of Appeals agreed with the lower court that the Second Amendment protects an individual right of the people to keep and bear arms, they reversed that part of the lower court's decision which benefited Emerson.(1) So, Emerson appealed to the U.S. Supreme Court. The Supreme Court is now considering if it will hear the case.
Lawyers speak to the Court through their briefs and last May 6 was the deadline for filing them. In a nutshell, attorneys for Emerson are petitioning the Court to hear the case. Attorneys representing the federal government do not want the Court to hear it.
Last year, in a letter to National Rifle Association, Attorney General John Ashcroft said that the Second Amendment confers the right to "keep and bear arms" to private citizens, and not just to the "well-regulated militia" mentioned in the Amendment's preamble. "While some have argued that the Second Amendment guarantees only a 'collective' right of the states to maintain militias, I believe the amendment's plain meaning and original intent prove otherwise," Ashcroft wrote.
It would be kind of hard to support our Constitution and the intent of the Founding Fathers without agreeing with that. So, Ashcroft's letter got a lot of hopes up around the country. But "saying" it and actually enforcing it are two different things. So, we waited. Meanwhile, people were still being arrested around the country for unconstitutional and archaic gun laws.
Finally, last week, the Attorney General, via two U.S. Supreme Court briefs filed by Solicitor General Theodore B. Olson, tied actions to his words. Sort of, anyway.
As Linda Greenhouse reported in The New York Times May 7: "The Justice Department, reversing decades of official government policy on the meaning of the Second Amendment, told the Supreme Court for the first time late Monday that the Constitution 'broadly protects the rights of individuals' to own firearms.
"The position, expressed in a footnote in each of two briefs filed by Solicitor General Theodore B. Olson, incorporated the view that Attorney General John Ashcroft expressed a year ago in a letter to the National Rifle Association. Mr. Ashcroft said that in contrast to the view that the amendment protected only a collective right of the states to organize and maintain militias, he 'unequivocally' believed that 'the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.'"
Linda Greenhouse was exactly correct. That is what was filed in both Emerson and another case. Unfortunately, "unequivocally" is not exactly what Ashcroft or Olsen intended. Unequivocal would mean that they support the words "shall not be infringed" in the Second Amendment with "no doubt or misunderstanding" and the meaning is "clear and unambiguous."
The words "shall not be infringed" are unequivocal to many of us. "Shall not" is rather clear and needs no explanation to anyone outside of a government office. However, public officials want tight control over the people. Therefore, the Justice Department does not think of our right to keep and bear arms as a "right." Rather, to them it is an inconvenient "privilege" that must be strictly regulated by capricious bureaucrats.
Justice does not want Emerson to be heard by the Supreme Court simply because they know the Court is going to take a very dim view of many gun laws and may wipe our hundreds in one opinion. One only need read Justice Thomas's opinion concurring with the majority in the 1995 U.S. v. Lopez(2) case for a hint. We are sure the Justice Department knows Lopez quite well. Congress tried to regulate guns via the Commerce Clause. But, the Supreme Court did not buy it.
Justice Thomas wrote: "While the principal dissent concedes that there are limits to federal power, the sweeping nature of our current test enables the dissent to argue that Congress can regulate gun possession. But it seems to me that the power to regulate 'commerce' can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce. Any interpretation of the Commerce Clause that even suggests that Congress could regulate such matters is in need of reexamination."
With that in mind, let's examine some of the Solicitor General's argument filed in Emerson:
"In its brief to the court of appeals, the government argued that the Second Amendment protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of the militia. The current position of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse."
That's ten steps in the correct direction, to be sure. But, it most certainly is not "unequivocal" support of the Second Amendment. The Amendment clearly says "shall not." That is greatly different than restricting "possession of types of firearms" as the government wants to continue.
So, saying that the Emerson Appeals Court decision reflected the kind of narrowly tailored restrictions by which that right could reasonably be limited, the Solicitor General requested the Supreme Court to turn down the appeal.
If the government keeps control over our "right" to keep and bear arms, that right, then, becomes degraded to but a privilege.
It was the intent of the Founding Fathers that the American people shall have the unequivocal right to keep and bear arms and that government "shall not" interfere with that right. That intent was for personal arms one may "bear." Not cannon, howitzers, Apache helicopters, or tanks. Small arms only. Therefore, for small arms made to carry, there should be no restriction by government whatsoever.
To do otherwise is to violate the Constitution, as written. Because, restrictions would violate what Ashcroft called "the amendment's plain meaning and original intent" of the Founding Fathers. What the words "shall not" mean is that the right to keep and bear arms is an absolute right that government may not violate for any reason. As inconvenient as that may seem to our socialist tainted minds nowadays, that was the intent.
The Justice Department wants to have it both ways. That is why we expect the Supreme Court to seriously consider hearing Emerson -- and we hope they do.
1. http://laws.findlaw.com/5th/9910331cr0.html
2. http://laws.findlaw.com/us/000/u10287.html
Don't bet your life on it. The military has fired on citizens in many instances. Look at the Bonus war, the early labor union conflicts, Kent State, WACO and that is just from memory.
Name them.
He can't, he won't. Squirm time.
I have. No you don’t do the "cite" game because you are determined to remain in ignorant bliss. You are all thrust and no parry.
The lament of the factless.
It seems to me that clearly the Second Amendment RESTRICTS THE GOVERNMENT from any infringements on the PEOPLE where personally owned firearms are concerned.
So what form of 'restriction' would be considered Constitutional? It would seem to me that all citizens who are living free among our populace would be equally endowed these aleged 'unalienable rights' No ?
I?ll try to answer in general terms because to get too specific would require a lot of writing.
Back in the FDR era, we had two major problems inflicted on us: The unconstitutional federal regulatory bureaucracy and another set of laws collectively known as the "War and Emergency Powers Act." These are entwined significantly. So, today, everyone in Washington knows that the federal government is tromping all over all of our so called "unalienable" rights guaranteed by the Constitution. Both the Senate and the House had very enlightening hearings on this problem a few years ago.
After a 1973 Senate Church Committee hearing, the preamble to the report let off with the words: "A majority of the people of the United States have lived all their lives under emergency rule. For 40 years, freedoms and governmental procedures guaranteed by the Constitution have, in varying degrees, been abridged by laws brought into force by states of national emergency."
It gets better, though. The Senate committee had the Attorney General testify and they grilled him about this. The Attorney General stated: "This vast range of powers, taken together, confer enough authority to rule the country without reference to normal constitutional processes. Under the powers delegated by these statutes, the President may: seize property; organize and control the means of production; seize commodities; assign military forces abroad; institute martial law; seize and control all transportation and communications; regulate the operation of private enterprises; restrict travel; and, in a plethora of particular ways, control the lives of all American citizens."
As Senator Church commented in the same document (Senate Report 93-549 of 1973): "If the President can create crimes by fiat and without congressional approval, our system is not much different from that of the Communists, which allegedly threatens our existence. These powers, if exercised, would confer upon the President total authority to do anything he pleased."
The problem was, Congress had already been using some of those very same unconstitutional laws to create other unconstitutional law for 40 years!
Justice Thomas is the only member of the Supreme Court to address this problem since 1936. But, one out of nine doesn't help much.
Now . . . as to why the Justice Department asked the Court to not hear Emerson; that's easy. Historically, Government seldom wants the Court to hear a case that could overturn federal law. That's about all there is to that.
Because, once the Court gets the case, it could have the opportunity to overturn many such laws. It all depends on how narrowly or widely the majority opinion is written. Five Justices with a burr up their asses about a topic could overturn 50 years of law Justice thought was written in stone. So, they never want the Court to hear such a case.
And, by the way, the Court has already signaled -- repeatedly -- that it is willing to reexamine federal law on interstate commerce and those associated laws (which includes gun laws). They are just looking for the right case. Is Emerson it? I don't know.
Some background on this can be found at: http://209.15.142.23/reports/headsup/state98.htm That text came about after one of Clinton's State of the Union speeches that got me off on a major rant. Later, it became a book outline, but I never found an agent willing to handle it. The material was just too hot back then.
What's the matter TPAINE are you getting all frustrated? LMAO I am becoming convinced that you are a closet commie.
The bottom line in all this is that we aren't going to win the RKBA battle in the courts. We must winit at the election booth. No matter what the USSC may or may not do with Emerson, for all practical purposes the feds and the states are still going to be able to place a lot of restrictions and regulations on guns unless we have the political power to prevent that from happening. All the parties involved in this issue, courts, lawyers, etc, are saying that "some" restrictions are allowable even if the 2nd is upheld as protecting an individual right. That means they will pass almost any law they want and the courts will uphold them.
They don't have to actually outlaw guns, they only have to make it so expensive and difficult to own them that most people won't bother. That means that we have to fight this battle in the hearts and minds of the American voters, just as we always have. We just have to get much better at it.
Go to SAF.org and check it out for yourself if you have a good hour. They have everything linked that you could want to read, even Emerson's signed BATF form when he bought the Beretta that eventually led to his legal troubles.
The political arena takes work but it provides the possibilty of victories. The work done against David Roberti here in California provides an example of what such efforts can accomplish.
The FEDERAL government.
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