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1/25/2018 7:38:29 AM
Posted: 10/16/2001 1:21:13 PM EST
[Last Edit: 10/16/2001 1:17:45 PM EST by AFARR]
I get this take on it: 1. Emerson went from the lower district court to the Circut court (the 5th encompases which areas?) based on a 2nd and 5th amendment arguement--that a. his 2nd amendment right to keep and bear arms was denied, and b. the blanket restraining order denied his 5th right of due process. The lower court decided for him, and now the Circut court said that 2 and 5 don't apply in this case. 2. Emerson was charged because he had a Beretta 9mm in violation of the restraining order. 3. The Circuit court decision then seems to say that he had a right to the Beretta, but as the court that gave the restraining order said, he was a danger to ex-wife/child, and that right to keep the Beretta was lost while he was under the restraining order. My overall view (please correct me if I am wrong) is that if you are a danger to someone, you can lose the right to keep and bear arms (the right is an individual right, as stated in the courts opinion), but unless you are found to be a danger under due process (a court hearing in which you can be present--which occured in the Emerson case), the right is an individual right which cannot be denied, only subject to reasonable regulations. So, it is like a safety or fieldgoal for the Second, not quite the touchdown we were hoping for? And, one more legal question--according to what I read, Emerson was present at the hearing (pro se) that granted the restraining order. If you are in a jurisdiction that routinely grants (assuming there is such) restraining orders WITHOUT a hearing to show you are a danger, would the Emerson ruling apply?
Link Posted: 10/16/2001 2:42:55 PM EST
The salient point in Emerson, from a 2nd Amendment point of view, is that it affirms the right to keep and bear arms as an INDIVIDUAL right - which is at odds with the other Circuits, who hold to a collective/state's right interpretation. If affirmed by the Supreme Court as an individual right (never yet done in the 20th century), then the standard applied to laws regulating guns becomes a much stricter test - wherein the state must show a compelling legal state interest, like that used in free speech cases, in order to regulate a constitutional right, than is the case with current legislative standards. Under a compelling interest test, most firearms laws would be judged unconstitutionally vague or restrictive, and have to be thrown out and rewritten. So... if the 2nd amendment reasoning is upheld in the 5th, it has important implications for existing gun legislation, and by placing the 5th at odds with the other circuits, would virtually guarantee a Supreme Court review to resolve the conflict.
Link Posted: 10/16/2001 4:06:33 PM EST
[Last Edit: 10/16/2001 4:08:17 PM EST by stator]
My take on it: 1- The Emerson issue is dead and is not going anywhere. Or, more specifically, this case is not the conduit for the 2nd amendment issue going any further to SCOTUS. 2- The three judges obviously disagrees with other circuit court's viewpoint that the 2nd reserves the right as collective rights. They believe in the individual rights view. 3- The 5th amendment issue in Emerson's case was resoundingly overturned due to the BATF form 4473. 4- Overall, these three judges squashed this case. Why? Well, there's numerous possible reasons. First, aspirations of these judges getting higher appointments (I don't know their ages). Second, perhaps they felt that Emerson wasn't the appropriate vehicle for what arguably could be this decade's most important decision by SCOTUS. Third, they could have just "chickened-out" using laymen's terms. Regardless, they left plenty of opinion for another 2nd amendment case to go forward. If my second guess is accurate, it may just be these judges again. The finally piece of information needed is all of the "friend of the court" filings. These filings are how deals are made between lawmakers and judges (ie. where politics enters the scene). I've report here some time ago that such deals are being made. Edited to answer these two questions per my interpretation: 1- Yes, you can lose your rights to bear arms if under a restraining order, or found guilty of certain types of crimes. Due process exists because of the BATF form 4473 which is signed and states conditions regarding restraining orders. Pure and simple: Emerson lost his arguements completely in this decision. 2- Not even a field goal at this point, just a draw at best (but for Emerson, it's a loss).
Link Posted: 10/16/2001 5:55:29 PM EST
[Last Edit: 10/16/2001 5:57:28 PM EST by Fuzzbean]
While Emerson himself may be screwed, and this particular case might have dead-ended without resulting in the immediate nullification (or whatever the term would be) of all existing gun control laws, I think it is a very big victory for us anyway. It will probably take a different case or action starting up from scratch before the Supreme Court resolves the tremendous conflict that now exists between the different circuit courts. But when they do, the powerful direct language and many references to historical documents contained in this decision will make it very, very difficult indeed to NOT issue a ruling that is both favorable for us and solid in it's impact. Too much has been said here and in the district court decision for the higher court to dance around the issue or pretend that historical documents do not exist. Just look at this clear language: "We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia." I guess the "type excluded by Miller" are guns having no potential military use, something I personally can live with since the modern military uses such a wide range of weapons. And since most "sporting" guns would find safe refuge in the shadow of the formerly-evil military types anyway. Overall, we could hardly have asked for a better choice of words: "individuals"; "privately keep"; "their own firearms"; "personal weapons". There is simply no way for the anti-gunners to twist this around in the future to claim it's all about the National Guard or duck hunting. The expression "suitable as individual, personal weapons" could in a sense be a limitation on the Second Amendment, but I think it's a necessary and welcome one. How many times have anti-gunners brought up the idea of restriction-free ownership of bazookas, anti-aircraft missiles, or atomic bombs to ridicule our interpretation of the right to bear arms? With all the nuts and terrorists running around today, we know there is going to be a line drawn somewhere. Since the Second Amendment is an [i]individual[/i] right related to (though not limited to) militia duty, it makes sense to draw the line between the type of individual weapon that a single militiaman might reasonably show up with on one hand, and crew-served guns or weapons of mass destruction on the other. Sure, I hate to expose crew-served machineguns to legal restrictions, but there is no other logical place to draw the much-needed line and we have to set realistic goals. Hopefully, if this ever works out to where we can freely keep and bear real select-fire assault rifles again, there will not appear to be much reason to pile restrictions onto crew-served weapons that are arguably only marginally more "dangerous." I'm no lawyer or law professor, but I think we done pretty good this time. Especially considering that bum Emerson we had to work with.
Link Posted: 10/17/2001 1:17:41 PM EST
I’m not a legal scholar, but I am an attorney who has studied this issue. This case is huge for two reasons: 1) The Fifth Circuit has now created a definite split between the other Circuits. This means that the U.S. Supreme Court now has a reason to hear this case and resolve the split among the Circuits. With everything happening in the country lately, now may be a good time to have the Supreme Court hear the case. The Fifth Circuit has unequivocally held for an individual right. Furthermore, it supported it with viable arguments, caselaw and historical support. 2) Ruling against Emerson on the 2nd amendment may be brilliant. If they had ruled for him, then only the government could appeal the decision to the Supreme Court. Lets face it, Emerson himself is inconsequential to this entire effort. He is simply the vehicle to get this issue through the courts. Ruling against him allows him (really the NRA, etc.) to also appeal this case to the Supreme Court. Remember, the goal here is to get the Supreme Court to rule on this issue as an individual right, and then all of the other Circuits must follow. Personally, I think that the Supreme Court will have a difficult time supporting the collective rights approach and will have to find an individual right.
Link Posted: 10/17/2001 2:06:42 PM EST
I don't know how some can get all excited about this ruling or think it is a big win for us. Think about this: Emerson lost big time as his whole case was over-turned for him. Whether individual or collective rights was just a bridge for his main argument which was a lack of due process. Even so, the fifth circuit argued that individual rights of the 2nd didn't apply to him as restricting gun rights to those under a restraining order as long as due process was followed. Which the fifth said did happen. The ruling of individual rights doesn't help Emerson and he is unlikely to appeal to SCOTUS. Furthermore, since the outcome was that Emerson lost, other defense attorneys will hesitate using this ruling as supportive arguement for their case. The only place where this ruling will be helpful that I can foretell is in PRK where due process will be much more difficult for the DA to prove due to the confusion of SB15. Even then, it will take a victim much money and patience to get through the vast left-win courts including the seventh circuit before reaching SCOTUS. Don't get excited about this one as it is basically a punt by two pro-2nd judges. However, the NRA and others will drum the beat on this one to raise funding. I should mention one more thing. When the lower court reverses their decision, they will most likely give Emerson what will amount to a slap on the wrist (this is why I said that Emerson won't appeal). However, the feds can appeal sentence which would send it back to the fifth circuit. Since the feds won't get satisfaction there most likely, they could go to SCOTUS. However, I believe the Bush administration will not allow the appeal. Instead, the administration should make deals to allow the AW ban within the 94 crime bill to sunset (they may have done so already).
Link Posted: 10/17/2001 7:39:34 PM EST
Never having studied law, I'm frankly a little bit fuzzy on exactly how the court system works. Looking at this from the point of view of a dummy: The government isn't going to take this any higher, because they "won." Emerson (or his backers) may want to appeal it, but it seems to me the germaneness of the Second Amendment issue is at an end in this particular case, since that is not where Emerson lost it. While I believe the Supreme Court will eventually be forced to resolve the conflict that now exists between the different circuit courts, this case no longer hinges on that particular issue. Even if they did consider this case they might limit their judgement to whether or not "due process" requirements were met, and other aspects where the circuit court decided against Emerson, and not even look at the Second Amendment issue which Emerson and the circuit court agree on. The Supreme Court has historically made obvious efforts to avoid thinking about this issue wherever possible; though I suppose the current crew might just volunteer something without being cornered. Like I said before, once something does force them to consider the Second Amendment I think they will now be forced to consider it very fully and fairly. That is where this new ruling is a big victory for us. The fact that Emerson himself lost overall means almost nothing. We already knew no right is 100% absolute in the eyes of the courts. Felons will never be able to legally own sub-machine guns, for example. Or, free speech doesn't let you yell "fire!" in a movie theater. We might not agree exactly with the judge's view that due process was satisfied in this particular case, but that's minor squabbling compared to the "individual right" victory we won.
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