EMERSON & THE SECOND AMENDMENT

Fiedor Report On the News #272 ^ | 5-12-02 | Doug Fiedor

[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.

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1. http://laws.findlaw.com/5th/9910331cr0.html

2. http://laws.findlaw.com/us/000/u10287.html

 

 END

[Bob J]

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[philman_36]

However, I will defend your right to try it with me at any time. So have at it.
So...Oh I don't know how about twisting my defense of Tpaines right to "rip" into his fellow posters into "calling him out"?
I think the "So have at it." qualifies as "calling someone out". I don't have to "twist" anything. No lie there.
Do you have a right to "rip" into your fellow posters? You seem to think you do as you do it quite frequently and consistently.

[philman_36]

However in Texas guns are just tools NOT measure of manhood.

[philman_36]

Where?
Post 226.

[Texasforever]

Once again childish posturing and infantile need to twist words to you own needs.

[philman_36]

And on another thread, but we'll just stick to this one.

[philman_36]

Once again childish posturing and infantile need to twist words to you own needs.
No twisting needed. Where have I lied?
And again with the child thing. I'm down to an infant now I see.
You own needs? snicker

[Texasforever]

I can also prove who called who out on that too.

[philman_36]

I can also prove who called who out on that too.
Please, do so.

[Hoosier Patriot]

We just need to give em the gun....

Hey my friend, I think you know that I'm not a statist, but if you're giving away guns, I've got room for a few more....{;-)

[Texasforever]

I will post it on that thread to avoid thread to thread arguments. Look for the post in about 30 seconds.

[Texasforever]

ctually - you attempted to shoot me down. Current FAA regulations prohibit, among other things, firearms from being carried beyond the security checkpoint. There is no exception made for pilots.

All you have to do is post the regulation and I will concede the point. The article I posted was a recent article but so far from you all I have is your personal assertion.

[philman_36]

Armed pilots banned 2 months before 9-11

I'm also still waiting to be shown where I lied Tex.

[harpseal]

I like to think of myself as an histortian. Although teh American army did not use submachineguns in WWI the German army did employ at least one 9mm submachinegun. Off the top of my head I can not give you the name and model but such a weapon was issued to the Kaiser's aqrmed forces. The Thompson gun was an American design in response to the usefulness of this weapon.

Of course at teh time of the NFA enactment US forces in China were issued some of the Thompsons. I can not speak about Marines in Latin Amererica at that time perhaps someone else can. In any case the short barreled shotgun was chosen primarily because the case could be fraudulently argued that it had no military usage as if it had such a usage then it would have been unconstitutional to tax it the way the NFA did.

Stay well - Stay safe - Stay armed - Yorktown

[dcwusmc]

Roscoe, you choose not to get the point, simply because you are so enamored of the power of the State and can't seem to conceive of people making their OWN choices, for good or bad, and living with the consequences...

HOWEVER, for those who are more misguided than evil, I will respond to your juvenile diatribe...

It is not about doing dope... FYI, my personal drugs of choice are legal already (tobacco and alcohol) and are more lethal in their effect than most of the currently illicit crop, but I am not likely to change up, even after the WOsD is over and its perpetrators jailed or shot. What it's about is the trampling of the BOR done by you drug warriors in the name of doing something that you have no business doing in the first place. Plus the spillover onto the second amendment, which is the thrust of this thread! Your idol, Bush I and his executive orders banning certain weapons based on a spurious and specious "sporting use" criteria.

Roscoe, please go crawl back under your rock and leave folks alone. The lives of others are NOT yours to dispose of and you know it...

[Roscoe]

The "right" to smoke crack comes from the BOR?

Nonsense.

[Dead Dog]

So, the $10,000 question (actually $60.00 in parts From Bushmaster and a drift punch) is, Could a USSC decision in favor of Emmerson cause the repeal of the NFA?

I've said it before, and I'll say it again, if the Swiss can have full auto, so should I.