Texas man sentenced to prison for having gun while under protective order - Emerson

Cleveland Plain Dealer ^ | 1/24/03 | AP

[jeremiah]

I continued, to send a man to prison, for owning a tool, he did not use... DID NOT USE. We cannot send people to prison for owning legitimate tools, for what they might do, only for what they have done. Otherwise we step into the realm of thought-crime. As a matter of fact, I see nothing wrong with letting a released felon, own a firearm. If he is a threat to the citizenry, he should be kept imprisoned. Too many gun laws, causes crime. Don't allow him to carry a concealed weapon, nor a rifle around town, but a personal protection device at home, or unloaded and displayed in the window of his pickup, on the way to hunting grounds. I see no problem with this.

[DugwayDuke]

Actually, in most cases I don't disagree, at least for those felons not convicted of a violent crime. But once a person has shown a propensity to commit a crime, then I don't have problems with prohibiting that person from owning the tools specific to that crime, ie, a car thief could be prohibited from owning slimjim. I see no problem with allowing a bank embezzler to own a shotgun for hunting.

BTW, there is a Supreme Court case of passing interest here. I don't remember the cite so you'll have to take my word on this. There was a felon who was prohibited from possessing a gun in Puerto Rico. He was used as an informant by the local police. His identity became known to those who he informed on and the police refused to protect him. He purchased a gun and carried that gun. He was attacked in a public place, a bar I think, and used the gun in self-defense. He was convicted of possessing a firearm. The court ruled that since the cops refused to protect the guy following specific and credible threats, that his purchase and use of the gun was a protected right and the conviction was overturned. But the key was "specific and credible" threats and police refusal to act.

[jeremiah]

Of course prohibiting a person from owning the tools of his crime trade is reasonable. I really don't know anything about the case of the husband under a restraining order, but if he did not brandish the weapon, or visit his wife with one tucked in his pants, he should not be prohibited from possession. The law disagrees with me, so I am wrong in this I fear.

[jeremiah]

I enjoy reasoned arguments, and throughout, you used reason. Continue to stand up for your opinions, and help keep freerepublic the best site for discourse on the net.

[tpaine]

Why do you support 'cruikshank'? It's an unreasoned, almost throwaway line in a long decision, accepting the RKBA's as an inalienable right, but denying the 2nd, --- as attempt to buttress the 'states rights' position on civil rights for blacks. - Your quote proves my point:

"The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence.

The second amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government."

This antiquated view of gun/civil rights was being used at the time to justify 'Jim Crow' laws in southern states, and has been well discredited since.
Why you fellas still support it is beyond all logic. 61 tpaine

Where, pray tell did I say I "supported" Cruikshank? Despite your (and my) opinion Cruikshank remains the law of the land until overturned.

No, its not the 'law of the land', it's just the decision of the court in the Cruikshank case. It can be, and is, ignored by many, justly so.

You (and I) may not like that, but neither of us serve on USSC. Don't you understand that I can state the law without rendering an opinion on the law?

Apparently you like to play word games, - so yes, I 'understand'.-- Hope I don't have to approve of such ploys .

Of course, Cruikshank would be overturned should USSC revisit that case, but the fact remains USSC has not done so. BTW, I love using the language from Cruikshank in arguing with gun controlists. It puts them in the position of trying to simultaneously supporting unequal rights for blacks while supporting gun control. Lots of fun.

Hmmm, I say it puts you playing at supporting 'states rights' at the expense of gun rights, as we see in CA. -- Lots of fun indeed.

---------------------------

"This antiquated view of gun/civil rights was being used at the time to justify 'Jim Crow' laws in southern states, and has been well discredited since. "

True, but the whole idea of "incorporation" has caused untold misery for conservatives since it has formed the basis of much litigation at the state and local level and interference with issues that are more properly handled at those levels. You cannot, at the same time, be in favor of limited federal government and also be in favor of "incorporation".

I think 'incorporation' is a silly legality, and a fraud. Protecting the 2nd was clearly referenced in ratification of the 14th. No incorporation is necessary.

Do you see that ardent supporters of RKBA are being inconsistent with conservative principles when they call for "incorporation" of the 2nd?

They are confused, as I explained above, -- just as are some 'conservatives', -- who deny that the 14th protects all our rights to life, liberty & property, -- from violation by ~any~ level of government, fed/state/local.

[DugwayDuke]

I've done a bit of research since I read your post. About the most I can find in the court records is an assertation by Mrs. Emerson that Mr. Emerson threatened her boyfriend. I do seem to remember that there may have been a scene in his office involving a firearm but I cannot find reference in the court procedings to that.

But that is generally beside that point to our discussion here which revolves around two points. Do "reasonable" restrictions exist and was the restraining order issued by the court and it's implied restrictions on Mr. Emerson's firearms possession reasonable. The court did find that the 2nd, like any other right, can be subject to "reasonable" restrictions which answers the first question. The court also found that this restriction was unreasonable since there was no reasonable basis to think that Mr. Emerson's possession of a firearm constituted a real threat to Mrs. Emerson, at least none sufficient to deny Mr. Emerson his RKBA.

[DugwayDuke]

That was a very kind thing to say. I too like spirited and lognical debate and that's why I love this site.

[DugwayDuke]

"No, its not the 'law of the land', it's just the decision of the court in the Cruikshank case. It can be, and is, ignored by many, justly so."

By definition, USSC has the final say on what constitutes the Law of the Land. You ignore that basic fact at your own peril.

"I think 'incorporation' is a silly legality, and a fraud. Protecting the 2nd was clearly referenced in ratification of the 14th. No incorporation is necessary."

I certainly support your right to think as you wish. And, to be honest, I hope your interpretation of the implications of the 14th Amendment becomes the law of the land. Pending USSC action, the fact remains that Cruikshank still stands.

[DugwayDuke]

"lognical" It should be obveous that I never injoyed spellin klass.

[Aarchaeus]

Another one I knew couldn't cope and gave himself a .45 caliber headache.

Very poor aiming there. Should have been a lawyer getting that headache.

[supercat]

"the First Amendment as written explicitly limits the actions of Congress."

So, the states could restrict freedom of speech and the press and religion?

Prior to the notion of incorporation, the First Amendment was an absolute bar against Congress (sure, an early congress passed the Alien and Sedition Act, but that got struck down in part on First Amendment grounds). It doesn't say "Congress shall only pass such laws... as may be deemed necessary". It says "Congress shall make no law". Clearly, such a rigid standard could not reasonably be applied to the states, for there are certain needs for such laws. Unfortunately, attempts to declare that it restricts the state and federal governments equally has weakened the protections from the latter.

If the Fourteenth Amendment was intended to forbid states from infringements of freedoms of speech, assembly, etc. it should have explicitly denoted the extent and scope of such prohibitions.

[Aarchaeus]

too often divorce lawyers automatically demand restraining orders

There ought to be a trelatively simple cure for that. If restraining orders are that easy to get, then every lawyer doing this needs to have a restraining order filed against him every time he files against anyone else.

[tpaine]

"No, its not the 'law of the land', it's just the decision of the court in the Cruikshank case. It can be, and is, ignored by many, justly so."

By definition, USSC has the final say on what constitutes the Law of the Land. You ignore that basic fact at your own peril.

Incredible. -- The USSC has jurisdiction to decide cases & interpret the law, not to make it. Read Articles I & III for starters.

-----------------------------

"I think 'incorporation' is a silly legality, and a fraud. Protecting the 2nd was clearly referenced in ratification of the 14th. No incorporation is necessary."

I certainly support your right to think as you wish.

Big of you.

And, to be honest, I hope your interpretation of the implications of the 14th Amendment becomes the law of the land.

It clearly is, always as been, -- if you can read the constitution without an ax to grind about states 'rights'.

Pending USSC action, the fact remains that Cruikshank still stands.

Sure does, -- as a silly antiquated monument to a dream of 'states rights', and to hell with any of the others.

[tpaine]

If the Fourteenth Amendment was intended to forbid states from infringements of freedoms of speech, assembly, etc. it should have explicitly denoted the extent and scope of such prohibitions.
-sc-

The framers of the 14th left them broad, - at life, liberty, and property, -- on purpose.
You need to read the ratification debates at the Library of Congress website.

[blackbart.223]

"The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The second amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government."

So, in effect, You are saying individual states also have the right to limit free speech, the right to peacefull assembly etc? As to Supreme Court rulings, they are unrealiable at best. They ruled in favor of forced busing which is clearly unconstitutional.

[blackbart.223]

A simple question that requieres a simple answer. What is your profession?

[supercat]

So, in effect, You are saying individual states also have the right to limit free speech, the right to peacefull assembly etc?

Under a principled and consistent reading of the Constitution of the United States, such powers are reserved to the states. Many if not all states' constitutions have provisions which in some measure restrict those states from infringing upon citizen's freedoms of speech, press, assembly, and religion. While such protections may be insufficient, and there may be a need for federal protections from the states, such protections should be granted by passing a new constitutional amendment, not just by reading into the Constitution stuff that--much as we might like it--isn't really there.

[blackbart.223]

"Under a principled and consistent reading of the Constitution of the United States, such powers are reserved to the states."

This is an obtuse argument on your part. According to you a state could be allowed to use a rubber hose to extract a confession from someone if it was in it's constitution.

[supercat]

According to you a state could be allowed to use a rubber hose to extract a confession from someone if it was in it's constitution.

The Fifth Amendment, unlike the first, does not limit its restrictions to Congress. Nor do the Second, Third, Fourth, Sixth, or Eighth.

[blackbart.223]

"The Fifth Amendment, unlike the first, does not limit its restrictions to Congress. Nor do the Second, Third, Fourth, Sixth, or Eighth."

Are you an attorny by any chance?