EMERSON & THE SECOND AMENDMENT

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.

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.

In the face of an outright ban on firearms ownership by a state, the federal government would have standing to object.

That's not the Second Amendment, that's Article 1, Section 8, Clause 15: "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions..."

"The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress." -- United States Supreme Court, U.S. v. Cruikshank, 92 U.S. 542 (1875), Presser v. State of Illinois, 116 U.S. 252 (1886)

Our Constitution isn't that long. You should read it someday.

Oh, 'BTW', any comment on this, roscoe? -- :

[Well buried] In a footnote filed with a legal brief to the Supreme Court, Ashcroft's position is explained as understanding 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."

In other words, the administration has thrown us gun nuts a sugar tit platitude about individual gun rights, one we've always known, -- and restated their 'right' to restrict possession. - TO INFRINGE. -

A great victory, for doublespeak.

Wrong again.

"To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws." -- John Adams

If the courts rule this way, it would open the right to bear machine guns. And why not? Maybe not for concealed carry, but ownership. And, maybe? Or am I going a little overboard here?

It is legal to own a machine gun you just have to jump through hoops to get one.

Advancing the power of big brother state seems to be their true hidden agenda and/or game.

You know, at one time I thought that many of these "usual suspects" were just paranoid-imprison drug users-don't legalize drugs-the booggie man will get us wackos, but I have come to agree with your statement. They are just pro-big government totalitarians. It doesn't matter if its drugs, guns, property or whatever, they just want the government to control everything.

I've read, - & I understand the constitution, - far beyond your capabilities, roscoe. -- Your last post for instance, is total inane nonsense to the point at hand. - You are reduced to bafflegabbing strings of words that have no meaning.

"To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution......

There is no other lawful use of a gun than private self defense(other than hunting, practice). Adams' words make no sense. He must have just finished some of Sam's choice brew when he wrote that.

After four years of seeing their statist spin on every concievable issue, it is MORE that obvious.

There has been a loose group of statists here at FR since the get go. -- When they become too outspokenly anti-gun etc, they usually change their names. -- 'Roscoe' is near the end of his FR usefulness. -- I predict a new, more subtle version of his bull will soon emerge, -- like a snake shedding his skin, we will see a new 'persona', -- 'roscoe lite'. -- For awhile.

Adams' words make no sense.

No vigilante gunplay, no self-appointed "militias", no shoot outs in the street, mandatory adherence to municipal laws regulating the manufacture, sale and use of firearms.

The Second Amendment isn't an invitation to anarchy.

No vigilante gunplay, no self-appointed "militias", no shoot outs in the street,

Exactly like I said - unlawful uses are obvious, and include pretty much anything other than self-defense, hunting and practicing.

mandatory adherence to municipal laws regulating the manufacture, sale and use of firearms.

Nope! Even Adams didn't say that. He just stated the obvious about the violation of rights using a gun. Its funny how people such as yourself take the drunken words of our founding fathers to be some devine revelation and refuse to see the simplicity of such words.

Wrong again.

"To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws." -- John Adams

The Second Amendment isn't an invitation to anarchy.

Correct roscoe! Amazing!

It is also not an invitation to unconstitutional "mandatory adherence to municipal laws regulating the manufacture, sale and use of firearms."

...unconstitutional "mandatory adherence to municipal laws regulating the manufacture, sale and use of firearms."

"The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress." -- United States Supreme Court, U.S. v. Cruikshank, 92 U.S. 542 (1875), Presser v. State of Illinois, 116 U.S. 252 (1886)

Still unanswered.

If the US Congress has no power to infringe on the R2KBA, as you said a few posts back...

Can you explain how the Gun Control Act of 1968 has survived ?

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