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

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

[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.

[DugwayDuke]

"State law says 50 feet from a road, 300 feet from a occupied bldg."

Do you consider those restrictions "reasonable"?

[FSPress]

Is the sporting use import restriction a reasonable restriction?

[DugwayDuke]

Do you disagree with the proposition that all rights have limits? Any debate about whether a restriction is reasonable is a debate about the limits of a particular right.

[FSPress]

Is the sporting use restriction reasonable?

[DugwayDuke]

Surely, you don't want to attempt the proof that no reasonable restrictions on RKBA exist by proving that all members of the universe of possible restrictions are unreasonable. That may take awhile.

[freepatriot32]

i wonder if ashhole would consider this a reasonable restriction California 'Literacy Tests' for Gun Buyers an Assault on Civil liberty

[FSPress]

The second imposes a restriction on the government (shall not be infringed). On the other hand at various time s certain restriction have been deemed reasonable such as not allowing blacks to own guns. Are your reasonable restrictions of today better than those reasonable restrictions of yesterday?

[DugwayDuke]

The Second Amendment is not one of those said to have been "incorporated", ie, it only applies to the federal government. This is one reason why California, one of two or three states lacking an equivalent to the 2nd Amendment, gets away with it's restrictions.

Whether a specific restriction is reasonable has only passing interest to the question of whether "reasonable" restrictions exist. I mentioned several restrictions in my first post in this thread. Which of those do you find "unreasonable" or unconstitutional?

Interesting that you would mention blacks and firearms ownership. I suggest you research US v. Cruikshank which held, among other things,:

"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."

Don't misunderstand. I'm an avid supporter of RKBA. But there are reasonable restrictions on that right just as there are reasonable restrictions on all other rights.

We have two conflicting opinions on the limits of reasonableness on RKBA. The Fifth Circuit in Emerson held that limits exist on the ability of government to restrict RKBA while the Ninth Circuit has held that no such limits exist. The only way USSC can be consistent with previous rulings, ie, Miller, is to agree with the Fifth Circuit.

[FSPress]

"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 the right to keep and bear arms is not dependent on the second amendment. How does the right exist, and how can the states restrict the right?

[DugwayDuke]

How are the origins of RKBA relevent to our discussion of whether rights have limits? If you have a point, please get to it.

[FSPress]

Work on your "incorporation" argument more, it will allow you to have more "reasonable" restrictions.

[philetus]

They will keep pecking away to see just how much they can get away with.

[DugwayDuke]

So you believe that the Second Amendment does apply to the states? You need to review Cruikshank.

BTW, I always find it strange when conservatives take the position that the BoR is binding on the states.

[PatrioticAmerican]

" I always find it strange when conservatives take the position that the BoR is binding on the states."

You mean that it is not? Not the 5th, nor the 1st? I beg to differ.

[supercat]

Do you think that Lautenberg is a reasonable restriction? The Bush Justice Department thinks so.

So did 97 (yes, NINETY-SEVEN) Senators.

[supercat]

" I always find it strange when conservatives take the position that the BoR is binding on the states."

You mean that it is not? Not the 5th, nor the 1st? I beg to differ.

What are the first five words of the First Amendment? I find much less argument for incorporating the First than the Second.

[PatrioticAmerican]

So, you are saying that the right of the 5th, used in courts all over this country, is actually an plea not based on an actual right?

Are you saying that the 5th is only valid in federal court as the states have the right to demand that you do testify against yourself?

[supercat]

Are you saying that the 5th is only valid in federal court as the states have the right to demand that you do testify against yourself?

Nothing in the Fifth Amendment explicitly limits its scope. By contrast, the First Amendment as written explicitly limits the actions of Congress.

[tpaine]

'Dug', on the Ca gun thread linked above, one of the posts mentioned the same 'incorporation'/states 'rights' stuff you do, so I'll repost that same rebuttal:

robertpaulsen said:

California's state constitution says nothing about the right to keep and bear arms. California has no "second amendment" in the state constitution.
Normally, the 14th amendment would cover a citizens rights at the state level, but the USSC never incorporated the 2nd amendment under the 14th.
Bottom line: California could ban guns if it wanted to.
-rp-


"Incorporation" is a legal fiction used by the USSC and the political power structure to play their silly games.

The constitution uses clear language to declare itself as the supreme 'law of the land' and, in the 2nd, - to protect the peoples RKBA's.
The 9th and 14th clearly support these facts of constitutional law. The arguments used at the ratification of the 14th clearly show that the one of the purposes of the 14th was to make the individual U.S. citizens RKBA's absolutely un-infringeable by state/local governments.

Statists of all stripes cannot abide by this fact.

Your 'incorporation' theory is a red herring. Dupes use it to imply that 'interpreting' our constitution is best left to the 'experts'.

[DugwayDuke]

"Incorporation" is not my "red herring". Until USSC changes it's mind, Cruikshank remains the law of the land and the Second Amendment does not apply to the states.

Please understand, I'm not advocating the theory of "incorporation". I'm only stating the current interpretation of the law.