Emerson Case Update

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Jim March

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OK, somebody check my logic here.

There's FOUR possible outcomes:

1) "Emerson wins on the second": this is the ultimate for us. The 5th backs the trial judge completely, in his comprehensive analysis of the individual right principle in the 2A. This is also the "simplest" answer for the 5th to write because all they have to do is "rubber-stamp" the trial court's killer, awesome decision in our favor.

2) "Emerson wins on the 10th": in this variant, the 5th skips the direct RKBA question and rules that none of this has anything to do with interstate commerce and is therefore totally beyond the Fed's jurisdiction. This might severely restrict Fed gun control BUT it leaves the states totally free to screw us.

As I see it, a win on the 2nd is better because it's fairly easy to argue it should apply to the states. Stephen Halbrook has already laid the groundwork there, by showing that a key reason for the 14A was to protect black access to defensive firearms...implying that the 2A was "incorporated" down to the states.

3) "Emerson wins on the 5th amendment": This is the "cop-out" danger; basically, a ruling that Mr. Emerson wasn't properly warned by the state of Texas that his RO caused Federal gun restrictions to apply to him...therefore "due process" was violated. This would be a real ****, for us. It also disarms poor Mr. Emerson, although he walks so he wouldn't be too unhappy.

4) "Gov't wins": in which case, the 5th circuit would have to rule that the 2nd is a collective right, because the trial court based it's primary cause for releasing Emerson as a second amendment thing.

Does this sound about right?

Jim
 
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Jeff Thomas

New member
Jim, I believe you're right. I worry about #3 as well.

This decision, and this exchange / logic (if documented with the decision) may also help with those people who believe 'no one is trying to take your guns away ...'.

Well, I'm biting my nails here ...

Regards from AZ
 
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Dennis Olson

New member
Rest assured that if #3 or #4 were to occur, the SC will NOT agree to hear the case. At least as the court is presently constituted. We need to make SURE that a conservative gets into the WH this fall, OR ELSE.
 
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Jim March

New member
Some good news: it's possible for Emerson to win on multiple counts, such as 1 and 3, 2 and 3, whatever. Even all three.

That doesn't hurt us. Naturally, we prefer any combination that contains #1.

There's some interesting rumors floating around regarding Clarance Thomas - he supposedly got turned down by NICS for using a PO Box for personal privacy reasons, and got royally pissed.

True or not, who knows...but we can dream :).

That aside, there's been several recent "limitation of Fed powers" rulings from the current Supremes lineup that sure gives hope :).

Jim
 
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creynol3

New member
It's 3am where I sit right now. I've been trying to work and have been unable to since a password is not being accepted. This has damn well made my day! Absolutely! Thank You. Thank You. Thank You!

I couldn't find anything about this. With the esceptino of a little blurb on MSNBC. Damn do I feel good.

One question for all of us. Assuming the 2nd is eventually ruled an individual right, HOPE!, we will need to be ready to counter any attempt to Amend the Bill of Rights and take this from us. A discussion area for this eventuality would not be out of line.

Thanks Again
:)
 
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Shroom

New member
You can tell when the so-called "good guys" are losing.

There is no media coverage.

I haven't seen a peep of this on ABC, NBC, CBS, or CNN.

I haven't had time to watch FoxNews to see if they have covered it.

I will lay some odds that Sarah, Bill, Al, Chuckie, Rosie and the rest of the gun grabbers are not sleeping peacefully tonight.

I also expect to see the aboved named people using this as a rallying point to get Al elected this fall. They will be using the fear of GW appointing a conservative to the USSC who will rule for us and against them.

Don't celebrate too early, the gun grabbers have alot of money on their side, and it will be getting uglier before it is over.
 
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Brett Bellmore

New member
Just found this:
www.cnn.com/2000/LAW/06/14/gun.rights/index.html
Texas gun case tests scope of Second Amendment
June 14, 2000
Web posted at: 12:59 p.m. EST (1659 GMT)
WASHINGTON (CNN) -- The Second Amendment to the U.S. Constitution says: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The courts have never clearly decided whether it guarantees an individual's right to possess a gun, or whether it really applies, in this day and age to the National Guard, the descendant of the "well regulated militia."

Now, the Fifth Circuit Court of Appeals is considering U.S. v. Emerson, a Texas case that could decide the question.
A lower court ruled that a federal law that took away husband Timothy Joe Emerson's gun in a bitter divorce case was unconstitutional because it violated the Second Amendment, an individual's right to own a gun. Federal law makes it a crime for a person to possess a firearm while under a court restraining order.

The three-judge appeals court panel repeatedly questioned whether the issue belonged in their court.

Alarmed gun control advocates argued that if the lower court's decision were upheld, many of the nation's gun laws would be overturned.
"If the individuals' rights views were to prevail generally, it would fundamentally alter the constitutional standards under which gun laws are judged," said Dennis Henigan of Handgun Control, Inc., a group that advocates gun control.

Pro-gun attorneys insist that a ruling favorable to their side would not eliminate gun control, but would certainly limit it.
"I think everybody realizes the stakes are very high," said gun rights attorney Stephen Halbrook

If the Supreme Court ultimately decides the case, it would be the first definitive ruling on the scope of the Second Amendment, even though it has been in the Constitution since 1791.

From CNN National
Correspondent Bob Franken.
*******************************
Oh, such detailed coverage; What the heck does, "The three-judge appeals court panel repeatedly questioned whether the issue belonged in their court." mean, anyway? WHY were they questioning it? From what perspective?

I wonder how long we'll have to wait for transcripts...



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Sic semper tyrannis!
 
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Jim March

New member
Regarding repealing the 2nd:

Won't happen. We *already* blocked that via shall-issue CCW in *31* states. Some of those are pro-RKBA enough to friggin' revolt if they try and dump the second, and damned few would ratify any such critter.

Any group of idiots tries a move in that direction, we're going to have to give 'em three little words that'll show the repercussions of such stupidity:

"guerilla civil war"

Jim
 
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Jim March

New member
Hey, I just thought of something:

Are there any states within the 5th Circuit area that are "no-CCW" zones, either outright or discretionary?

If so, and if we get the "big win" in this case in this court, someone should immediately challege the "no self defense" provisions in Fed court based on "pure violation of the 2A". That'll get the ball rolling, so that if the Supremes uphold it, we'll have case law saying the states need to stick with the 2A.

Bingo! We just got nationwide CCW.

Under such circumstances, whoever takes on a non-CCW state in the 5th can be assured support in a nationwide fundraising drive to pay for it.

Jim
 
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Bob Locke

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The guy who wrote the piece for CNN ought to turn in his press credentials. Obviously "investigative reporting" isn't up his alley at all, nor is doing any background research prior to writing an article.

Besides, the anti's don't care what the Constitution says. They want their way, and everything else is meaningless.
 
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swampy

New member
Jim March- The 5th Cir. is composed of TX, LA, and MS, none of which are CCW prohibitionist. Concerning your analysis of outcomes: if the government wins, rather than hold that the 2nd is a collective right, the 5th Cir. is more likely to accept the government's argument that the case can be decided without addressing the constitutional issue. The bottom line would then be: the case adds nothing to 2nd amend. law. I understand that the loser before the 3 judge panel can request rehearing by a 5 judge panel. Assuming the loser gets a 5 judge panel, the make-up of that panel could be decisive. Most 5th Cir. judges are Regan/Bush appointees from states that are generally pro-gun. There are only 4-5 Clinton appointees, and if any 5th Cir. judges lean toward a collective right theory of the 2nd, they most likely will be found in this group. Unfortunately, even if Emerson wins on the 2nd and the govt. appeals, the Supreme Court will also get to review the govt. argument that the case can be decided without addressing the 2nd amendment. This means that even if the case gets to the S. Ct., there is no guarantee that a 2nd amend. opinion will be rendered. In the meantime, we can only hope!! $.02
 
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CMOS

New member
You know, this whole thing is so disgusting - our own government, who is supposed to have concern for our welfare and more importantly to defend the Constitution, is arguing in court to remove these rights.

When will we say "no more"?...

CMOS :mad:

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NRA? Good. Now join the GOA!

The NRA is our shield, the GOA will be our sword.
 
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Jim March

New member
Hmmmm...clarify please, how could the gov't win *without* constitutional issues being involved at all?

There's no question Emerson broke the Federal law regarding ROs and gun ownership; problem is, the law itself was unconstitutional.

Jim
 
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swampy

New member
To get the exact argument the govt. advanced, you should read its brief on one of the websites publishing the briefs in the case. These general statements may help: As a rule, if a court can decide a case without having to address a constitutional challenge, it will do so. The govt. is arguing that neither the district court judge nor the 5th Cir. needs to address the 2nd amendment to decide the Emerson case. Here is an attempt at an example. 1st amendment = free speech, but state law makes it a crime for someone to yell "fire" in a crowded theater when there is no fire. Someone does this dumb thing, people get hurt, and the state prosecutes. The defendant argues, "hey it was only a prank, and besides it was my right under the first amendment". The court rules that the state law prohibiting yelling "fire" is within the police power of the state, and to the extent that it infringes upon the defendant's free speech, it is justified by the greater needs of the society for public safety and therefore the court doesn't have to address the first amendment challenge raised by the defendant. (Another way of saying- in this instance, any individual right must yield to a higher right in that balancing act of finding where to draw the line.) In Emerson, the Govt. argues that the Fed. statute involved in the case is similarly situated, and it is unnecessary for the court to deal with the second amendment to resolve the case. Not sure this clarifies anything, but its the best I can do.

[This message has been edited by swampy (edited June 16, 2000).]
 
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Glenn E. Meyer

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I'm no expert on the intricacies of the law by any means. But I heard some pro-RKBA lawyers opine that they think the decision if positive will be written to limit it to this specific case in a very tight manner.

Still, it's a good thing to have any win.

Emerson isn't a sweet heart though and that will be used against us.
 
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dZ

New member
Today's Column http://www.boblonsberry.com/writings.cfm?story=406&go=4
CASE WEIGHS FATE OF SECOND AMENDMENT

It doesn't matter.

It doesn't matter what the courts think about the Second Amendment.
Whether they say it's an individual right or a state right or it's no right at
all.

It doesn't matter.

Because freedom is not found in the declarations of governments --
oppression is. Government does not exist to authorize freedom, but to
proscribe it.

And we've forgotten that in America.

Even though our Founding Fathers taught it. It is God who bestows liberty,
they said, not politicians. Government gets in the way of the exercise of
those freedoms and so must be restricted. The Constitution is not about
what we can do, it's about what government cannot do. It is meant to
restrict it, not us. You do not go to government asking for freedom, you
go to government demanding that it stop denying you freedom.

Rosa Parks didn't write a polite letter asking if she could sit in the front of
the bus. She knew she was right and she knew the law was wrong.

No matter what the courts had said.

You do not ask for rights, you assert them.

And the same goes for guns.

Which brings me to this trial in New Orleans this week. For the first time, a
federal court will hear arguments about whether the Second Amendment is
an individual right or a state right. That's the one about the militia and the
people and the keeping and bearing of arms.

Does that mean states have a right to have a National Guard or that you
have the right to own a gun? The judges will decide that and, either way, it
will go up to the Supreme Court. And it will decide.

And it might decide against the people.

And it might not matter.

Because the history of civil rights in this country is that people have always
wanted more freedom than the government was willing to give them.
There has always been a friction of liberty, with the people shouting,
"More," and the government shouting, "Less."

In U.S. v Emerson, the New Orleans case, it will be the full force of the
United States government arguing that there is no individual right to own
firearms, that the Second Amendment establishes the National Guard, and
nothing more. It will be one underpaid public defender who will argue for a
private right and liberty.

The United States government -- which most of us love and which many of
us have served -- is actively and aggressively arguing that you do not
have the right to own a gun. Incredibly, it is us versus them.

David versus Goliath, just like it has always been.

This is probably the most important test the Second Amendment has ever
faced. It could establish it as the bedrock millions of Americans believe it
is. Or it could effectively erase it from the Constitution. Much rides on this
case and its ultimate disposition.

Sadly, the government is arrayed against the people.

Blacks wanted to have equal protection under law. The government said
no. Women wanted to vote. The government said no. Blacks wanted
access to the ballot box and an end to Jim Crow. The government said no.

The structures of our government have always lagged behind the struggle
for "life, liberty and the pursuit of happiness." It is only natural that such
should be the case when it comes to the Second Amendment.

But just as patriotic blacks and women in turn struggled for their rights, so
too must people who believe they have the right to own guns patriotically
struggle to assert and exercise their rights. It is not revolution, it is duty.

And it is government which must demonstrate that it has the right to take
away our guns, not we who must demonstrate that we have the right to
own them.

Should we break the law?

No.

It is not at that point. And hopefully it never will be. But Martin Luther King
got an arrest record, and so too might some gun rights supporters.

But we should do all we can legally, and do what we have done already in
new ways.

And we must be resolved to prevail and to sacrifice.

Because freedom never comes easy and it never comes cheap.

And it seldom comes from federal judges.


- by Bob Lonsberry © 2000
 
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alan

New member
Herotdus:

To at least some extent, we tend to get the sort of law makers and "executives" that we do not trouble to vote and or work against.

I could be wrong, but that's the way it looks to me.
 
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