Posted on 01/26/2003 8:07:46 AM PST by FSPress
LUBBOCK, Texas (AP) -- A man was sentenced Friday to 2½ years in prison for owning guns while under a protective order -- a limitation on gun rights that an appeals court held was constitutionally acceptable.
The U.S. Supreme Court last June declined to hear arguments that Timothy Emerson should have been allowed to keep his guns under the Second Amendment right to "keep and bear arms."
Emerson was indicted after the restraining order was issued during his divorce in 1998. He owned several rifles and a handgun at the time.
A federal judge dismissed the charges, but the 5th Circuit Court of Appeals overturned the decision in 2001, ruling that an individual's right to bear arms could be restricted in some circumstances.
In Emerson's case and a similar one the Supreme Court also rejected, the Bush administration told the Supreme Court that the Second Amendment protects an individual as well as the collective right to gun ownership. That position reversed decades-old policy on the Second Amendment.
The administration, though, did not support Emerson's appeal, saying the Second Amendment right was still subject to reasonable restrictions.
The Supreme Court's decision not to hear the case sent it back to the district court, where Emerson was convicted in October.
Emerson's attorney, David Guinn, argued at trial his client shouldn't be punished for owning guns that were legal once his divorce was completed. He plans to appeal the sentence.
Emerson had faced a maximum of five years in prison and a $250,000 fine.
"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.
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"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.
Very poor aiming there. Should have been a lawyer getting that headache.
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.
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.
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.
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"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.
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.
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.
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.
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?
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