Pro's breif in U.S. v Emerson filed this week

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bookkie

New member
Just finished reading the Brief filed by the prosecution in U.S. v Emerson appeal in the 5th district of Texas. The Governments arguments rests on two things. 1. Prior case law, from U.S. v Miller to all of the lower federal cases since. They are once again relying upon their house of cards to support their claims. 2. Pure emotionalism. For example here is an excerpt " in all too many painful cases the only difference between a battered woman and a dead woman is a gun. Though domestic violence is the most under reported crime in America, it is still the leading cause of injury to women between the ages of 15 and 44." Hey they are right! The only difference between a battered woman and a dead woman is a gun…. So lets make sure that all of those battered women have guns and know how to use them.

This brief is sickening to read. So many lies and half truths in it, it is ridiculous. Anyway, I was curious to see what the opposition had to say in the case. Same o, same o. You can go to any board on the net and get the same debate out of most anti-gunners. Hopefully I'll be able to get copies of the briefs by Emerson and some of the amicus briefs…. If anyone has others please let me know I'm interested in reading them.

P.S. if anyone wants a copy please e-mail me and I'll shoot it back to you…. To long to post here as it is over 50 pages. Takes a lot of pages to list most of the lower federal court cases and give a description of each.



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Richard

The debate is not about guns,
but rather who has the ultimate power to rule,
the People or Government.
RKBA!
 
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Jack 99

New member
Interesting. I don't know much about the law, but I do know that the current group of Supreme Court Judges is unlikely to be swayed by emotionalism. That strategy may come back to bite the govt in the a%#. Hope so anyway.

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"Put a rifle in the hands of a Subject, and he immediately becomes a Citizen." -- Jeff Cooper
 
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Jeff Thomas

New member
Richard, any chance you could get that to DC so she could put it up on her web site? Emerson is such big news. Thanks.
 
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bookkie

New member
Will e-mail to DC... but will have to wait until Tuesday.... unless I go back into work for something. Left it there... Was hoping to get out dove hunting this weekend.



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Richard

The debate is not about guns,
but rather who has the ultimate power to rule,
the People or Government.
RKBA!
 
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DC

Moderator Emeritus
Cool! Fire it in here when ya get the chance...will upload it

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"Quis custodiet ipsos custodes" RKBA!
 
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Brett Bellmore

New member
I read the government's brief, too. Actually, I found it quite encouraging; Not a single argument there that a good constitutional scholar couldn't poke full of holes. And unlike Miller, THIS time BOTH sides get to present their case!

I thought the government's arguments basically boiled down to, "Never mind the facts, logic, history, or anything Cummings said; Stare decisis is GOD.", and "Guns! Yuck!"

Now, here's the downside: "Liberal" judges will throw out the facts, and support gun control, for ideological reasons. "Conservative" judges, like Scalia, absolutely WORSHIP precident, and think that they swore an oath to uphold stare decisis instead of the Constitution. I think we've got a shot at winning if this reaches the Supreme court, but we ought to think right now about staging a massive march in Washington some time between now and when the Court gets the case, just to remind the Justices how many people still value their right to keep and bear arms; Based on Scalia's book, they might be a little out of touch on that score.
 
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Rich Lucibella

Staff
Brett-
Started to email you, but others might be interested in this quick digression. Can you give us a brief lesson in "stare decisis"?

I gather from context that it is a legal principle that grants benefit of the doubt to precedent rulings, but would like to know more.
Thanks.
Rich
 
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Art Eatman

Staff in Memoriam
A year or two back, I read a fairly strongly-worded column by Justice Scalia, wherein he stated his belief that the Second Amendment referred to "the people" as individuals, not groups.

My recollection is that it was run in the American Rifleman/Hunter...

FWIW, Art
 
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Bimjo

New member
Here it is without the tags:

THEMES: Stare Decisis



THEMES: Stare Decisis



Stare Decisis (The Principle of Precedent, The Basis of the Common Law, Judge-Made law- Chapter 4 of Foundations of Law)


QUERY: What is the nature of a legal system
based on a judicial elite which depends on prior judicial authority to decide new disputes and make new law?

The principle of stare decisis is explained in Chapter Four but it should be considered and pondered during the entire course since it is in many ways the foundation of legal thinking and reasoning in the American
system.

Stare decisis is a Latin term which has been translated as "Let the decision stand." It refers to the principle of precedent, which is an ancient and powerful policy in Anglo-American law which requires judges to
decide their cases by following the principles that previous judges have
established in similar cases. Although precedent may be overruled, judges
are reluctant to do so unless it is apparent that the former rule would be clearly unjust in present circumstances.

For most of Anglo-American legal history, law was made primarily by judges, resting their decisions on the wisdom of former cases. Although the modern era has seen legislation rise as a dominant form of lawmaking,
in our system, we still search the cases (judicial decisions) to analyze the law, and, especially, to predict the outcome of a dispute if it were to be tried in a court of law .

It may not be immediately clear why this principle is so important. Perhaps you will begin to understand how it works and its importance as you do the exercises related to case briefing.


Trial and Appeal
The Adversarial Process
Jurisdictional Complexity

===========================

JP
 
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Rich Lucibella

Staff
Thanks for the cleanup, Bimjo.

Brett-
My apologies. I thought you'd posted Bimjo's cleaned up paste of your earlier response, so I deleted the original. Thanks for the quick reply.
Rich
 
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Brett Bellmore

New member
No apology needed, Rick. I'm just wondering why the page didn't come out right; I thought HTML was enabled?

Art: Scalia, in his book, "A Matter of Interpretation", does express the belief that the Second amendment guarantees an individual right. He ALSO expresses the belief that if the Court were to rule otherwise, "few tears would be shed". One wonders just how out of touch he could be, to think that...

[This message has been edited by Brett Bellmore (edited September 05, 1999).]
 
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Jason Kitta

New member
Brett,

Wasn't the "few tears would be shed" remark followed by something about, but it is still giving up a right, or something to that effect?

Jason
 
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Brett Bellmore

New member
Jason: So it was. I'm just concerned about whether Scalia, who places a high value on upholding precedents, will want to upset THAT many laws to uphold an amendment he thinks few people care about.

Ctdonath: Emerson is a guy who got charged with felony possession of firearms under the Lautenberg amendment, because he'd had a personal protection order filed against him by his ex wife. The Lautenberg amendment is that law which made it illegal for anyone who has EVER, no matter how long ago, been convicted of a "domestic violence misdemeanor" to own firearms. It also prohibits firearms ownership by people who have "domestic violence" personal protection orders against them, even thought THAT doesn't require you to actually be convicted of anything, or even get a jury trial.

Anyway, to make a long story short, Emerson challenged the law as a violation of about a half dozen provisions of the US constitution. The judge in the case, Judge Cummings, didn't even wait for a jury trial to declare that the Lautenberg amendment violated the Second amendment. And his opinion reads like a flier from the NRA! This is rather historic, as it's the first time a federal judge has actually upheld the Second amendment.

Naturally, the government has appealed, and I guess a trial is expected some time around March of next year in the Fifth circuit court of appeals. We're all rather excited about this, because this may be the case which forces the Supreme court to finally rule on the meaning of the Second amendment, instead of killing it by malign neglect.
 
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fubsy

New member
what I think also makes this so important is that a judege rulled in san francisco that the 2nd was a states right not an individual right., so these two cases are theoretically diametrically opposed, while the supreme ct does not have to hear a case, the talk is that they can not have to differing rulings on the same law.....fubsy.
 
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Brett Bellmore

New member
Now, I've got a question on the Emerson case which reading the government's brief did not aswer: They made a great deal of the allegations of nasty, (And if true, illegal!) conduct on the part of Mr. Emerson, in order to obscure the REAL legal issue, which is whether you can constitutionally deprived of the right to keep and bear arms WITHOUT BEING CONVICTED OF ANYTHING.

But the question I'd ask is, do they have any actual evidence that Emerson committed these nasty acts, beyond someone's unsupported allegation? Since the acts in question are indeed crimes, I'd suspect not, based on the simple fact that they haven't tried to convict him on those acts, which would surely strengthen their case.
 
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