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

[TheErnFormerlyKnownAsBig]

Well where do you think the U.S.C. comes from if not Congress?

I disagree with you're statement that the second ammendment is a limit on the congress' actions. The first ammendment mentions congress as does several others in the Bill of Rights but the 2nd amm. makes no such statement. And of course it is a recognition of a natural right that one can conclude is protected by the 14th amm. from being slapped around by the States.

Was I reading your comment incorrectly?

[tpaine]

How many times must I tell you roscoe? -- No 'cites'.

Cites are a silly, repetitive game, as you play with them.

I'll discuss principle, & constitutional basics with you. -- No word games or cites.

[Roscoe]

The first ammendment mentions congress as does several others...

No, only the 1st.

"The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone." -- U.S. v. Cruickshank, 92 U.S. 542 (1875)

[Roscoe]

I'll discuss...

But only if you're free to invent your own own sourceless facts as you go.

Naturally.

[tpaine]

You post inane 'cites' to avoid taking honest positions.

-- I post honest opinion based on the plain words of the constitution.

[TheErnFormerlyKnownAsBig]

This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone." (1875)

That doesn't take into account the 14th ammendment that was ratified in 1868 which states: .... No state shall make or enforce any law which shall abridge the priviledges or immunities of citizens of the United States;..."

[CurlyDave]

OK Guys (and Gals):

I used to think I was reasonably bright and I like legal issues, although I am far from being a lawyer.

The Emerson case is enough to make my head spin. Can a pro-2A lawyer just tell me should I root for the Supremes to take the case or should I root against this? Not that I have much say in the matter anyway, but I would surely like to know which side is the good guys.

Are there any other 2A cases which could reasonably come before the Supreme Court during Bush's first term? Are any of them better for us than Emerson? If we wait, could Bush get another conservative Justice and a 2A case, or is this likely to be our best shot?

Thanks,

CurlyDave

[Roscoe]

That doesn't take into account the 14th ammendment

It's been 144 years. No judicial legislation incorporating the 2nd into the 14th yet.

[Texasforever]

Well the argument has at least shifted from "militia only, interpretation to what constitutes "infringement". That is a giant step. It makes a whole host of state and federal gun laws passed using the "militia only" foundation open to challenge. However; from my reading of Ferguson I don't see how that case is a good one to settle anything. The Texas "2nd amendment" does not even mention the militia but it also empowers the state legislature to "regulate" certain aspects the amendment. The problem is that even California, that does not even mention arms/guns in its constitution, has not banned gun ownership. They have simply "regulated", who, what types, and how many, an individual can own. I am very strong in my belief, that if the founders had intended the entire BOR to apply to all State Governments they would have said that clearly and no state constitutions would have been allowed. The 14th amendment has never been applied beyond Roe v Wade and all of the civil rights laws that are on the books today as far as I can tell.

[TheErnFormerlyKnownAsBig]

Well just because the 2nd ammendment has been ignored for a century doesn't mean it doesn't exist.

[patton]

Root for ths USSC to take Emerson. Best we can hope for.

[Texasforever]

That should have been Emerson.

[Roscoe]

The problem is that even California, that does not even mention arms/guns in its constitution

44 states have Constitutional provisions enumerating a RKBA. Unfortunately, California isn't among them.

The battle here has to be waged one piece of legislation at a time.

[Roscoe]

Well just because the 2nd ammendment has been ignored

Not altered.

[TheErnFormerlyKnownAsBig]

In case you're interested here is the Washington State Constitution and it's RKBA clause.

Washinton State Constitution. Excerpted RKBA clause:

SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this SECTION shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

[Texasforever]

Very close to Texas.

[Texasforever]

impaired,

That is an interesting word. I wonder why "infringed" was not used? It is going to get real interesting to watch the debate on "infringement" unfold.

[TheErnFormerlyKnownAsBig]

Impaired was in more common usage when the Washington State Const. was written.

[Doug Fiedor]

Just playing around for 15 minutes, I find that the Second, Ninth, Eleventh and Fourteenth Amendments all fit nicely into this argument. Which means, we could write a book on this using positive case law. But, I started with the 14th Amendment, so let?s look there for a moment. Section 1 says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That's cool! But, what did the U.S. Supreme Court say to enforce that?

Back in some 1883 civil rights cases, the Court seemed a little angry with certain States violating the civil rights of citizens. In the U.S. Senate's annotated version of the Constitution (p. 1933), I find this cute little ditty:

In the Civil Rights Cases, the Court observed that "the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation," that is, laws to counteract and overrule those state laws which Sec. 1 forbade the States to adopt. And the Court was quite clear that under its responsibilities of judicial review, it was the body which would determine that a state law was impermissible and that a federal law passed pursuant to Sec. 5 was necessary and proper to enforce Sec. 1.

So, in the face of the Second, Ninth, Eleventh, and Fourteenth Amendments, it appears to me that we build quite a positive argument for the right of the citizens to keep and bear arms throughout the country.

That is, of course, if "to keep and bear arms" is actually a right as listed in the Bill of Rights. The Attorney General formally said it is and we should believe him. The Court will, too, and that counts for a lot here.

In the case of Emerson, the Court MUST agree with the Attorney General that to keep and bear arms is a Constitutionally protected right because there will be no one in the matter attempting to stipulate otherwise.

What the Attorney General did was to make this a win-win situation for us -- but not necessarily for Emerson. However, I believe, the only way a favorable majority opinion will come out of that Court is if government is allowed some restrictions on our Second Amendment right. All we can do is hope to somehow limit what restrictions are allowed to government. And, we'll need to hire a better quality of people to send to Capitol Hill.

[budwiesest]

I am very strong in my belief, that if the founders had intended the entire BOR to apply to all State Governments they would have said that clearly and no state constitutions would have been allowed

"The people", when used means just that: the people.( though politicians might be inclined to think of themselves as members of a higher class of "people", there really aren't two distinct groups, just people.)

The Bill of Rights was never intended to be a Bill of Limitations on the FedGov. though at times it might seem so. The word "Rights" in the phrase 'Bill of Rights' may have lost some of it's meaning over time, but that is to be expected whenever one is dealing with tyranny and governments in general.

After specific functions of the FedGov were enshrined in the Constitution, the states and individuals were handed the leftovers- respectively, which at the time, were significant. Today, states and individuals tread on thin ice thanks to the 'living document' interpretations that have expanded FedGov rule over most every facet of every state's or individual's lives. Disarming the populace is a very necessary first step in maintaining the imbalance that now exists between the government and the governed. We now live in a time when upsetting the applecart would have serious consequences and nobody wants that, for sure.