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EMERSON & THE SECOND AMENDMENT
Fiedor Report On the News #272 ^ | 5-12-02 | Doug Fiedor

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

 

 END


TOPICS: Activism/Chapters; Constitution/Conservatism; Culture/Society; Editorial; Government
KEYWORDS: 1shallnotmeans; 2unequivocally; 3notprivilege; archaicgunlaws; banglist; billofrights; guncontrol; interpretation; lopez; originalintent; secondamendment; supcrtemerson; viewfedgov; viewpeople
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To: JFoxbear
The Second Amendment was a restriction solely on Congress.
201 posted on 05/13/2002 1:47:11 PM PDT by Roscoe
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To: Roscoe
Was GCA of '68 an act of Congress? in your opinion?
202 posted on 05/13/2002 1:51:17 PM PDT by JFoxbear
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To: JFoxbear
If you believe that the GCA of '68 was enacted in compliance with the Second Amendment, make your case.
203 posted on 05/13/2002 1:57:37 PM PDT by Roscoe
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To: Roscoe
I would never attempt such a case. I asked YOUR opinion.

I know I type in english, don't you read it that way?

204 posted on 05/13/2002 2:06:11 PM PDT by JFoxbear
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To: Roscoe
It's been 144 years. No judicial legislation incorporating the 2nd into the 14th yet.

Actually, acitivist Courts judicially incorporated each Amendment in the Bill of Rights via the 14th Amendment - thereby extending protections of the BOR to citizens against their State Government.

Congress cannot "incorporate" the BOR protections - that's a violation of State's Rights, oops, they don't exist either...no, it's a violation of the concept of "dual sovereignty."

Don't know what 'dual sovereignty' is? Go to law school...you'll hear lots about it in Con Law right up to the incorporation cases ruled on by SCOTUS. The leftist professors hated the fact that the States could do things the Feds couldn't and love the fact that a bunch of their socialistic predecessors got onto SCOTUS and were able to 'incorporate' the BOR via the 14th, thereby limiting the State's powers.

No, SCOTUS hasn't 'incorporated' the Second Amendment, but if you read the COA Emerson decision, it lays the case-law framework for incorporation of the Second.

205 posted on 05/13/2002 2:06:42 PM PDT by Abundy
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To: DugwayDuke
SEALs carry M60s as one of their individual arms options - as a belt fed "BAR" fired from the shoulder, documented on a recent PBS show. Good show too.

I want an accurized M2HB with tripod, on my front porch.

When the 14th Amendment is recognized as also pertaining to the 2nd Article of our Bill of Rights, some 20,000 gun laws will be extinguished. Enemies of our Constitution fear this.

What is to keep future government attorneys from obtaining "temporary restraining orders" against any and all Freepers, NRA members, etc. to preserve "good social order", a public safety issue. Our RKBA would be taken as sure as Dr. Emerson's. Criminalization of Constitutionally protected rights is THE point.

206 posted on 05/13/2002 2:06:47 PM PDT by SevenDaysInMay
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To: Abundy
Don't know what 'dual sovereignty' is?

Don't know what a non sequitur is?

207 posted on 05/13/2002 2:10:18 PM PDT by Roscoe
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To: JFoxbear
Then if you believe that the GCA of '68 was not enacted in compliance with the Second Amendment, make your case.
208 posted on 05/13/2002 2:11:23 PM PDT by Roscoe
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To: Abundy
Greetings:

Could you offer a professional opinion on the following?

If the Second Amendment forbids Congress from infringing on R2KBA, How could the GCA of '68 have been passed into law? Simply put: Is the GCA of '68 Constitutional in your view?

209 posted on 05/13/2002 2:17:52 PM PDT by JFoxbear
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To: Roscoe
The common definition of the word "infringe" is my entire case. I think GCA '68 should never have passed. Do you?
210 posted on 05/13/2002 2:22:35 PM PDT by JFoxbear
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To: JFoxbear
The common definition of the word "infringe" is my entire case.

Which has exactly what to do with federal versus state application?

211 posted on 05/13/2002 2:30:14 PM PDT by Roscoe
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To: Roscoe
They've been telling me you're a waste. I guess they are right. Simple direct questions must be evaded at all cost. That's all I can learn from Roscoe. Lesson is over.
212 posted on 05/13/2002 2:43:22 PM PDT by JFoxbear
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To: JFoxbear
It becomes increasingly evident that we should ALL just ignore roscoe, and his idiotic style of argument, if for no other reason than to help him regain his mental balance .

-- But that wouldn't be 'right' either, in a moral sense, as we would be failing in our duty to protect & defend the constitution.

Desisions, decisions, hmmmmm ------ best we err on the side of liberty.

213 posted on 05/13/2002 3:23:56 PM PDT by tpaine
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To: Roscoe
Ah...there you go again, ignoring the thrust of my post - which was to explain to, you politely I might add, that you were wrong with your condescending, one line post regarding incorporation of the Second Amendment.

Ready to admit that Congress doesn't "legislate" incorporation...as you posted?

Also, have you read either Emerson opinion? Care to discuss whether the Court of Appeals laid out why the Second Amendment should be incorporated?

Didn't think you would actually address my post in a straightforward manner...but just wanted to demonstrate that for the newbies and anyone you might have BS'd into thinking you are a reasonable poster.

214 posted on 05/13/2002 3:42:25 PM PDT by Abundy
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To: JFoxbear; tpaine
Roscoe is worthless...there truly is no use to post to him unless you enjoy arguing with a brain dead idiot.

With respect to the constitutionality of the statute I'd need to read it, along with the legislative history of it.

However, as I've been posting on other threads, the real issue, and the brass ring which we need to grasp, is the appropriate standard of review that Courts must employ to determine the Constitutionality of any gun control statute.

Standard of review for a fundamental, individual right - which I firmly believe the Second Amendment is - is "strict scrutiny." It's the hardest standard to meet for a statute, and probably 90% of the gun control statutes won't be able to meet it.

That's what we need to push for - and Emerson's brief addresses just that. They point out correctly that the Court of Appeals, after declaring the Second Amendment a fundamental, individual right, analyzes VAWA using a lesser standard - rational basis. The Emerson brief is asking SCOTUS to use the correct standard...and we damn well better hope they take it up.

215 posted on 05/13/2002 3:47:30 PM PDT by Abundy
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To: Abundy
Glad to see that, in essentials, you agree with Fiedor.

I find only one point of his troubling, he says:

-- "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".

Do you agree on the 'small arms only' bit?

216 posted on 05/13/2002 4:00:50 PM PDT by tpaine
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To: tpaine
Kinda hard to agree with a small arms only interpretation since anyone that could afford cannon and mortar in colonial times could own them. Seems hard to believe that the Framers intended anything other than what they wrote....

Not that I like the idea of the Southern Poverty Law Center owning it's own Abrams...but it would be intellectually dishonest to say the Framers only intended small arms.

Besides, I can't think of anything more relaxing on a Sunday afternoon than a 1/4 keg of Guinness, a junked car, a field and an 81mm mortar...

217 posted on 05/13/2002 5:19:08 PM PDT by Abundy
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To: Abundy
Besides, I can't think of anything more relaxing on a Sunday afternoon than a 1/4 keg of Guinness, a junked car, a field and an 81mm mortar...

Yep you are a real patriot.

218 posted on 05/13/2002 5:32:11 PM PDT by Texasforever
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To: Texasforever
I'm hopeful that your comment was intended with the same sense of humor as my quote you addressed...
219 posted on 05/13/2002 5:45:32 PM PDT by Abundy
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To: JFoxbear; tpaine
WRT State regulation of firearms; Roscoe is correct, the BOR is a prohibition against Congressional action. The Second Amendment would need to be applied against the States by SCOTUS via the 14th Amendment, i.e. incorporated.

As an aside, it is interesting to see Roscoe arguing FOR State's Rights when he is in Love with Lincoln, who killed them...

220 posted on 05/13/2002 5:47:41 PM PDT by Abundy
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