Actually, the Emerson ruling goes past that, I believe. IANAL, but the concept I have read is that of "strict scrutiny". Reasonableness, or being "rational", applies to all laws. They must be well-defined and must be crafted with the expectation that they accomplish a legitimate goal. "Strict scrutiny", however, is the criteria used to judge laws which affect rights. There is a burden on government to pass only legislation which addresses a "compelling interest" and the law must tread as lightly as possible on the right being infringed.
Emerson may yet get another day in court. The remand to the lower court means that Emerson will face trial. The trial judge will have to make decisions regarding the meaning of the law. Emerson will be able to challenge the details with regard to whether "strict scrutiny" will permit the law or not.
One area which will have to be covered are the circumstances under which Emerson regains his right to keep and bear arms. Where will the confiscated guns be? Who has the burden to care for them and return them to a person such as Emerson when he is no longer under a restraining order? To claim that this law treads lightly on the right to keep and bear arms but fails to protect Emerson's property, just because he "might" commit a crime while under a restraining order, is pretty hard for me to swallow.
If a person is imprisoned, then the government has an obligation to free him when his sentence is up. How is such an obligation carried out in cases like Emerson's. When does Emerson get a re-consideration of the restraining order so that he can have his guns back?
There are many hurdles yet to cross for the Lautenberg law and it may not, and should not, be able to cross them.
The reason why Ashcroft and Olsen filed the brief they did, was because they actually read the entire 2nd Amendment, which was not quoted in this opinion rant. Does the writer need a building to fall on him to see that the Amendment specifically uses the phrase, "well-regulated?" That can't be ignored, just because we don't like it. (And I support gun rights and individual ownership, including concealed carry laws)
We will win our arguments not solely with passion, but with precision and logic. The "new" position of DOJ is correct. First, the Second Amendment is the only Amendment in the Bill of Rights that has been narrowly interpreted and has been considered a "group right." Of course, since the Bill of Rights are individual rights of the people, this judicial fallacy has never held water. Accordingly, an individual right must read broadly, and any goverment effort to curtail that right must be subject to strict scruitney.
Second, there is no question that the language of the Amendment permits regulation by the government. Sorry, we can't ignore the four corners of the Amendment.
I subscribe to the idea that militia in the context of the Amendment refers to all able bodied people, as the term was used at the time. Thus, the militia reference is consistent with the individual rights aspect. However, the right to regulate same is not cured by that analysis.
As for a REAL analysis of the arguments, I submit the following article: Guns and the Constitution
Prof. Eugene Volokh, UCLA Law School
(from the Wall St. J., April 12, 1999, p. A23)
A federal judge in Texas has just done something no federal court had done in more than 60 years: He held that the Second Amendment protects people's right to keep and bear arms. If this decision is affirmed by the Fifth Circuit Court of Appeals, the case has a very good chance of going to the Supreme Court, which hasn't yet resolved this issue. And behind the narrow Second Amendment matter lies a deeper question about the utility of a written Constitution.
As in many constitutional cases, the defendant -- Timothy Emerson, a San Angelo doctor -- isn't the best of fellows. During Dr. Emerson's divorce proceedings, his wife claimed he had threatened to kill her lover. The state divorce court apparently made no findings on this, but entered a boilerplate order barring Dr. Emerson from threatening his wife.
Though this state order said nothing about firearms, a little-known federal law bars gun possession by people who are under such orders. Dr. Emerson not only failed to dispose of his guns, as the law required, but eventually brandished one in front of his wife and daughter. He was then prosecuted under the federal law, though for gun possession rather than gun misuse.
The instinctive reaction here is that Dr. Emerson is the very sort we'd like to disarm, trouble waiting to happen. But when the divorce court issued its order, Dr. Emerson hadn't been found guilty of anything. Had he been convicted of a felony, all agree he would have lost his right to keep and bear arms as well as his right to remain at liberty. Here, though, there was no trial, no conviction, no finding of misconduct or future dangerousness. So when the federal law barred Dr. Emerson from possessing guns, he was a citizen with a clean record, just like you and me. Hence his Second Amendment defense.
The hot constitutional question is whether the Second Amendment protects only states' rights to arm their own military forces, or whether it protects an individual right. If the states-rights view is correct, Dr. Emerson could have been disarmed with no constitutional worries -- and so could anyone else. But the Second Amendment's text and original meaning pretty clearly show that it protects individuals. The text, which is reprinted nearby, says the right belongs to people, not states. And in the Bill of Rights "the right of the people" refers to individuals, as we see in the First and Fourth Amendments.
Moreover, the Second Amendment is based on the British 1688 Bill of Rights and is related to right-to-bear-arms provisions in Framing-era state constitutions. The British right must have been individual; there were no states in England. Same for the state constitutional rights; a right mentioned in a state Bill of Rights, which protects citizens against the state government, can't belong to the state itself. So in the Framing era, the "right to bear arms" meant an individual right.
What about the militia? The Second Amendment secures a "right of the people," not of the militia; but in any event, as the Supreme Court held in 1939, the Framers used "militia" to refer to all adult able-bodied males under age 45. Even today, under the 1956 Militia Act, all male citizens between 18 and 45 are part of the militia. (Women are probably also included, given the Supreme Court's sex-equality precedents.) "Well-regulated militia" in late 1700s parlance meant the same thing -- "the body of the People capable of bearing Arms," which is how an early propsoal for the amendment defined it. And the individual-rights view is the nearly unanimous judgment of all the leading 1700s and 1800s commentators and cases.
Based on this evidence, federal Judge Sam Cummings concluded Dr. Emerson's gun possession (though not his gun misuse) was constitutionally protected. If the Second Amendment is to be taken seriously, then Judge Cummings was right, and the other lower court cases holding the contrary were wrong.
If, that is, the Second Amendment is to be taken seriously. The notion of a written, binding Constitution tells us it should be, but cases like this lead some to wonder. Why, they ask, should today's decisions be bound by the dead hand of the past? If we have a "living Constitution" onto which courts may graft new rights, why can't they prune away obsolete ones?
These are genuinely tough questions, which go far beyond just the Second Amendment, and which have been raised in past controversies by conservatives as well as liberals. Let me give a few responses.
First, government entirely by the sometimes hyperactive hand of the present also has flaws. The benefits of liberties, however real, are often less visible than the costs. When we see Dr. Emerson before the court, accused of making violent threats, it's tempting to treat the right to possess guns as a nuisance. But we don't as easily see the hundreds of thousands of people who use guns each year in self-defense, including separating spouses who defend themselves against would-be abusers.
Second, modern innovations that restrict traditional liberties are often oversold. Realistically, people willing to violate laws against violent crime will rarely be deterred by laws against gun possession. Conversely, if Dr. Emerson is the poster child for why some shouldn't have guns, he is equally an example of how the law could effectively punish people for misusing guns (by brandishing them in a threatening way) rather than just for having them. Maybe ignoring the Constitution is neither so valuable nor so necessary.
Third, while some think gun rights are "obsolete," others disagree. Since 1970, 15 states have enacted new state constitutional rights to bear arms or strengthened old ones; 44 constitutions now have such provisions. In the mid-1980s, nine states let pretty much all law-abiding adults get a license to carry concealed weapons; now the number is 31. A conclusion that the right is obsolete thus doesn't rest on any unambiguous consensus; it can rest only on the judge's personal policy preferences. Do we trust judges that much?
And finally, do we trust judges to determine when other provisions -- the Establishment Clause, the privilege against self-incrimination, the jury trial, the freedom of speech -- become obsolete, too?
I have a hard time believing that Ted Olson and John Ashcroft are ignorant about the Second Amendment. Yet, the brief filed by the soliciter general on behalf of the government in the Emerson and that other, companion case said that the current position of the DOJ is that the Second Amendment is an individual right WHICH IS SUBJECT TO REASONABLE RESTRICTIONS.
That addition on the end of the Second Amendment keeps bringing me back to George Orwell's Animal Farm, where the piglet is caught changing the "animal laws"...from "No animal shall ever sleep in a bed." to "No animal shall ever sleep in a bed WITH SHEETS".
It is political hairsplitting which has the result of being able to ignore any restriction simply by deliberately misinterpreting it. Our current government is as guilty of this as the previous regime, except that they're giving a few more concessions to us gun types because they realize that we haven't been nearly disarmed enough and now we're pissed off about it.
That, and there's a war on. They need to work their wartime agenda with lots of restrictions on freedom in the name of "National Security".
As I have said before: Benito, Adolf, and Josef had Gun Control and Homeland Security too...
Another concern of mine is to what use the Government is going to put all of those combat-hardened veterans to once the war is over. It frightens me to think that my brothers in the armed forces would be used against us in a "Homeland Security" capacity, ostensibly for a "Domestic Terrorism Task Force."
DG