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Posted: 10/16/2001 12:06:53 PM EDT
Haven't read it yet: [url]http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm[/url]
Link Posted: 10/16/2001 12:18:06 PM EDT
Here's the bottom line as I read it (I am not a lawyer): "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.(66)..." Hooray! [50] But the 5th District disagreed with Emerson's claim that Section 922(g)(8)(C)(ii) violated his Second Amendment rights: "...However, for the reasons stated, we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant's Second Amendment rights. Accordingly, we reverse the district court's dismissal of the indictment on Second Amendment grounds." Bottom line - Major victory for gun rights advocates in general, but it sucks to be Dr. Emerson today.
Link Posted: 10/16/2001 12:26:29 PM EDT
Good news indeed for gun owners!!! Too bad about the indictment against Dr. Emerson though.
Link Posted: 10/16/2001 12:27:06 PM EDT
However, for the reasons stated, we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant's Second Amendment rights. Accordingly, we reverse the district court's dismissal of the indictment on Second Amendment grounds. I might cry...i had hopes for this....shall not be infringed is now dead.
Link Posted: 10/16/2001 12:28:41 PM EDT
Sounds like they are trying to split the baby.
Link Posted: 10/16/2001 12:31:01 PM EDT
Yep, not to mention that if I read it correctly they wholly agreed that it was okay to regulate 'gangster' weapons. Let's not bother to look at the fact that dang near every NFA weapon is in use by US military and LEO's today.
Link Posted: 10/16/2001 12:31:30 PM EDT
Originally Posted By hound: However, for the reasons stated, we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant's Second Amendment rights. Accordingly, we reverse the district court's dismissal of the indictment on Second Amendment grounds. I might cry...i had hopes for this....shall not be infringed is now dead.
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explain?
Link Posted: 10/16/2001 12:32:04 PM EDT
Originally Posted By hound:...I might cry...i had hopes for this....shall not be infringed is now dead.
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There are no absolute rights, hound - Not even the right to breathe. Any right can be deprived through due process. The key part of this decision for me is that the 5th Circuit CLEARLY came down on the side of the Second Amendment guaranteeing an INDIVIDUAL's RKBA, not some cockamamie "collective rights" Commie bullshit interpretation. This may open the door to additional challenges. As a beseiged California gun owner, the news is overwhelmingly good for our side. [heavy]
Link Posted: 10/16/2001 12:33:17 PM EDT
Looks to me like: If you own firearms, and you are going through a divorce in Texas (or have one of those restraining orders in effect) you need to "sell", "loan", or otherwise disposses yourself of them, until the order expires... Interesting way to put this... there is sure to be some other fallout from this. I wonder how this might affect the law signed by Gov Gay Davis of CA recently?
Link Posted: 10/16/2001 12:40:06 PM EDT
Is that the SCOTUS decision? It seems like they're saying the 2nd protects the right to keep any personal arms that would be appropriate for militia service, regardless of membership in any militia. Didn't Emerson get busted for having a Beretta 92 while under a restraining order from his (ex) wife? A 92 would definitely be a 'militia type' firearm nowadays... it's what our military personell use as a sidearm, right? I feel the same as Hound... 'shall not be infringed' doesn't seem to mean much anymore. Someone can write a law 'infringing' your rights because someone takes out a restraining order on you, for WHATEVER reason!
Link Posted: 10/16/2001 12:46:49 PM EDT
So basically, from what I'm reading, and I'm no lawyer, fifth circuit just affirmed the Second as an individual right, while upholding Emerson's restraining order. The fifth just gave Emerson reason to take his case to SCOTUS, and SCOTUS will have to directly address the nature of the Second.
Link Posted: 10/16/2001 12:49:17 PM EDT
Restraining orders are, unfortunately, a very dubious part of our law today. They infringe on much more than our gun rights. They infringe on your freedoms of: Speech - such as speaking to your ex-spouse Travel - such as traveling to the vicinity of your ex-spouse Property - by preventing you from selling or otherwise disposing of it. ...etc. And unfortunately, all this happens without a trial by a jury of your peers. As a nation of laws, we need to work to restrain the arbitrary nature of restraining orders, pun intended.
Link Posted: 10/16/2001 12:50:41 PM EDT
Originally Posted By Matrix: Good news indeed for gun owners!!! Too bad about the indictment against Dr. Emerson though.
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Read note 66 in the Appendix: "...The district court dismissed the indictment and Emerson has not yet been convicted of anything. In fact, we have been informed that he has been acquitted of state charges relating to the matter mentioned in the special concurrence...."
Link Posted: 10/16/2001 12:51:48 PM EDT
Originally Posted By GovtThug:...The fifth just gave Emerson reason to take his case to SCOTUS, and SCOTUS will have to directly address the nature of the Second.
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Emerson has no case. He was acquitted. That's the end of the line for this one, I'm afraid.
Link Posted: 10/16/2001 12:53:40 PM EDT
The 5th Circuit decision is still a big win for gun rights. The Circuit spent several pages discussing the Second Amendment and its history. It will be very difficult for the Supreme Court, and for the other Circuit courts to casually dismiss this opinion. Something new that I wonder if you guys have noticed - prior scholarship had talked about the existence of two Second Amendment models - the individual rights or Standard model, and the collective rights model. This opinion splits this into three: The collective rights model The "sophisticated" collective rights model The individual rights model - which they uphold, in summary:
We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller.
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Thanks for posting this link, California_Kid! I sincerely hope that one day, the rest of the nation can help you guys out in Kali.
Link Posted: 10/16/2001 12:58:41 PM EDT
> "There are no absolute rights, hound - Not even the right to breathe. Any right can be deprived through due process." False. The entire point of what the founding fathers did was say that "yes, indeed" there are certain inalienable rights and the individual *is* SOVREIGN in a very extensive area of life. Rights are an IDEA (thought), they are also a PRINCIPLE (absolute). If properly implemented, rights will give you PROTECTION from other people. The two requirements to gain this protection is 1) Establish a government in which rights are protected as a matter of principle (this is the great debt we owe the founders) and 2) respect those rights in others. If you do not infringe on the rights of others, there is NO process of LAW that can deprive you of your rights. Rights are inalienable because no one can take them from you -- you can lose the protection that rights would offer by violating the rights of other people but your rights can't be taken from you. - CD
Link Posted: 10/16/2001 1:03:10 PM EDT
Originally Posted By California_Kid:
Originally Posted By GovtThug:...The fifth just gave Emerson reason to take his case to SCOTUS, and SCOTUS will have to directly address the nature of the Second.
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Emerson has no case. He was acquitted. That's the end of the line for this one, I'm afraid.
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But that New York Jets player who got caught with high caps can use this to challenge New Jersey's gun laws. Their may be a case for new challenges to California's gun laws. It just means that the Emerson case itself is not going to be the vehicle to take this to the Supreme Court. Sadly, this just means more time. Why did they delay this decision so long?
Link Posted: 10/16/2001 1:05:39 PM EDT
Originally Posted By California_Kid:
Originally Posted By GovtThug:...The fifth just gave Emerson reason to take his case to SCOTUS, and SCOTUS will have to directly address the nature of the Second.
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Emerson has no case. He was acquitted. That's the end of the line for this one, I'm afraid.
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If a Democrat administration takes office, can they appeal this decision? I wonder if there is some time limit within which they must do this?
Link Posted: 10/16/2001 1:08:10 PM EDT
No there are no grounds for a Democratic administration to appeal this. Nor would they want to. Not unless they loaded the Supreme Court first.
Link Posted: 10/16/2001 1:12:59 PM EDT
Link Posted: 10/16/2001 1:15:31 PM EDT
Originally Posted By California_Kid: Emerson has no case. He was acquitted. That's the end of the line for this one, I'm afraid.
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Emerson was acquitted of [b]state[/b] charges by a Texas jury. The [b]federal[/b] charges still stand. If they did not, the court would simply have dismissed the case as "moot". It's up to Emerson to see if he wants to appeal to a full bench of the Fifth Circuit or to the Supreme Court.
Link Posted: 10/16/2001 1:16:19 PM EDT
[Last Edit: 10/16/2001 1:12:13 PM EDT by BostonTeaParty]
Did anyone read what Judge Parker had to say in his dissent to Section V? I think his is the opinion to which other courts will pay attention, and probably rightly so.
No doubt the special interests and academics on both sides of this debate will take great interest in the fact that at long last some court has determined (albeit in dicta) that the Second Amendment bestows an individual right. The real issue, however, is the fact that whatever the nature or parameters of the Second Amendment right, be it collective or individual, it is a right subject to reasonable regulation. The debate, therefore, over the nature of the right is misplaced. In the final analysis, whether the right to keep and bear arms is collective or individual is of no legal consequence. It is, as duly noted by the majority opinion, a right subject to reasonable regulation. If determining that Emerson had an individual Second Amendment right that could have been successfully asserted as a defense against the charge of violating § 922(g)(8), then the issue would be cloaked with legal significance. As it stands, it makes no difference. Section 922(g)(8) is simply another example of a reasonable restriction on whatever right is contained in the Second Amendment. ... If the majority was only filling the Federal Reporter with page after page of non-binding dicta there would be no need for me to write separately. As I have said, nothing in this case turns on the original meaning of the Second Amendment, so no court need follow what the majority has said in that regard. Unfortunately, however, the majority's exposition pertains to one of the most hotly-contested issues of the day. By overreaching in the area of Second Amendment law, the majority stirs this controversy without necessity when prudence and respect for stare decisis calls for it to say nothing at all. See Cass R. Sunstein, One Case at a Time: Judicial Minimalism and the Supreme Court 5 (1999)("[A] minimalist path usually--not always, but usually--makes a good deal of sense when the Court is dealing with a constitutional issue of high complexity about which many people feel deeply and on which the nation is divided (on moral or other grounds).") (italics in original). Indeed, in the end, the majority today may have done more harm than good for those who embrace a right to gunownership.
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Link Posted: 10/16/2001 1:17:41 PM EDT
This ruling is HUGE!! This could very easily be the vehicle that gets rid of the AW ban and numerous State laws in States like California and NJ. I am HAPPY!! Wish they had supported the initial ruling in its entirety though.
Link Posted: 10/16/2001 1:19:04 PM EDT
Originally Posted By BostonTeaParty: Did anyone read what Judge Parker had to say in his dissent to Section V? I think his is the opinion which other courts will pay attention, and probably rightly so.
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Yes, but see Item 66:
66. We reject the special concurrence's impassioned criticism of our reaching the issue of whether the Second Amendment's right to keep and bear arms is an individual right. That precise issue was decided by the district court and was briefed and argued by both parties in this court and in the district court. Moreover, in reaching that issue we have only done what the vast majority of other courts faced with similar contentions have done (albeit our resolution of that question is different). The vast majority have not, as the special concurrence would have us do, simply said it makes no difference whether or not the Second Amendment right to keep and bear arms is an individual right because even if it were an individual right the conviction (or the challenged statute) would be valid. In this case, unless we were to determine the issue of the proper construction of section 922(g)(8) in Emerson's favor (which the special concurrence does not suggest), resolution of this appeal requires us to determine the constitutionality of section 922(g)(8), facially and as applied, under the Second Amendment (as well as under the due process clause and the commerce clause). We have done so on a straightforward basis.
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Link Posted: 10/16/2001 1:24:16 PM EDT
Thanks, ckapsl. Somehow I missed that on the first reading. What they say in Item 66 does make sense. However, I still think a lot of their sister circuit courts are going to pay more attention to the dissent to Section V than to the majority.
Link Posted: 10/16/2001 1:30:07 PM EDT
Originally Posted By Shazbat: Yep, not to mention that if I read it correctly they wholly agreed that it was okay to regulate 'gangster' weapons. Let's not bother to look at the fact that dang near every NFA weapon is in use by US military and LEO's today.
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Thats right, when Miller was first heard the US Army did not own any shotguns shorter than 18inches, or any suppressed sub-machine guns. That ended with World War II. Now suppressors are commonly used on M4's, all military rifles are now fully automatic. Remember, only the government showed up to argue Miller, no one was there to enter evidence contrary to the Governments factually flawed argument that the weapons banned had only criminal uses. That would not happen today.
Link Posted: 10/16/2001 1:32:06 PM EDT
Originally Posted By BostonTeaParty: Thanks, ckapsl. Somehow I missed that on the first reading. What they say in Item 66 does make sense. However, I still think a lot of their sister circuit courts are going to pay more attention to the dissent to Section V than to the majority.
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They dont have to. Most of them already have embraced one form or the other of the collective rights argument. But any attempt now to exercise that embrace could result in a appeal to the Supreme Court.
Link Posted: 10/16/2001 1:34:12 PM EDT
I am not a lawyer, but the following appear to be Mr. Emerson's options: Plea bargain Opt for a jury trial Appeal to the full bench of the Fifth Circuit Appeal directly to the US Supreme Court (unlikely to succeed)
Link Posted: 10/16/2001 1:36:39 PM EDT
Originally Posted By ArmdLbrl: They dont have to. Most of them already have embraced one form or the other of the collective rights argument. But any attempt now to exercise that embrace could result in a appeal to the Supreme Court.
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Very true, as the Fifth Circuit noted in this opinion, the opinions of their sister courts are not binding on them. The reverse is also true. But courts and lawyers don't operate in a vacuum. A federal appeals court upholding the individual rights view of the Second Amendment holds [b]a lot more[/b] weight than a federal district court in Texas.
Link Posted: 10/16/2001 1:41:47 PM EDT
LOL! The 5th Circuit Court has given me the best damn birthday present I could ever dream of, and I didnt even ask for it! Kharn
Link Posted: 10/16/2001 1:44:00 PM EDT
Actually I ment that there is no need for the other courts to refer to the dissent to section V. Since most of the other Appeals Courts do embrace the collective rights argument. Now a apellate level court decision favoring individual rights carries enough weight to be used in another apellate court- and enough to make the Supreme Court want to hear the case if the other apellate courts keep to their collective rights argument.
Link Posted: 10/16/2001 1:44:40 PM EDT
Happy Birthday, Feliz Cumpleaños, and Heilege Gegburtztag to Kharn!
Link Posted: 10/16/2001 1:52:06 PM EDT
And the NY Jets Damian Anderson has to also be pleased with this. It could save his ass.
Link Posted: 10/16/2001 1:55:08 PM EDT
[Last Edit: 10/16/2001 5:28:46 PM EDT by raf]
Link Posted: 10/16/2001 2:08:07 PM EDT
Its about time. We were supposed to have this ruling a long time ago. But, I always expected the 5th Circuit to uphold the 2nd. Especially since 2/3 of the panel were gunowners themselves. Now he should appeal to the Full 5th or SCOTUS depending on whether the Full 5th would uphold the 2nd. If they would an appeal to the Full court could bring a good ruling that would weigh more heavily on a future SCOTUS appeal. It will in the end go to the SCOTUS. If they rule in our favor it will mean the end of alot of gun laws. If they rule against us, we are in trouble. I more expect SCOTUS to take the middle of the road like the 5th did. They will likely uphold the 2nd, but place limits such as restraining orders, felons, age limits, etc.
Link Posted: 10/16/2001 2:13:40 PM EDT
Originally Posted By cc48510: Its about time. We were supposed to hav...It will in the end go to the SCOTUS. If they rule in our favor it will mean the end of alot of gun laws. If they rule against us, we are in trouble....
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Speaking for the beseiged gun owners of the Occupied California Republic, we're already in a world of sh1t. No conceivable SCOTUS ruling could make life any WORSE for us out here.
Link Posted: 10/16/2001 2:17:01 PM EDT
I dont understand legalese one bit. I do get the impression that this is good, reading the majority of favorable posts. BUT: what exactly does this mean to me,today, right now? Can I now have a NFA weapon? Is pre-ban no longer? Whats it mean?? BP
Link Posted: 10/16/2001 2:28:40 PM EDT
It means there is a better legal basis on which to challenge unconstitutional gun laws in court. Nothing else changes, except for Dr. Emerson and his attorneys.
Link Posted: 10/16/2001 2:36:27 PM EDT
[Last Edit: 10/16/2001 2:32:48 PM EDT by BostonTeaParty]
Originally Posted By captainpooby: I dont understand legalese one bit. I do get the impression that this is good, reading the majority of favorable posts. BUT: what exactly does this mean to me,today, right now? Can I now have a NFA weapon? Is pre-ban no longer? Whats it mean?? BP
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They upheld the constitutionality of that portion of the Violent Crime Control and Law Enforcement Act of 1994 which prevents a person under a domestic violence restraining order from possessing a firearm on the basis that it did not infringe on Dr. Emerson's individual right to bear arms as protected by the Second Amendment. Most people here are glad because the view that the Second Amendment protects the right of the individual person to bear arms was upheld and the view that the Second Amendment only refers to the National Guard was rejected by the court. However, the restrictions placed on that right by the 1994 law were found to be reasonable by the court, and people here may not be too happy about that. Dr. Emerson certainly isn't. So, no, you can't have an NFA weapon unless you could before. Pre-ban is still pre-ban. None of the laws have changed or been overturned. Everyone is just excited that a major court finally recognized that the Second protects an individual right.
Link Posted: 10/16/2001 2:40:09 PM EDT
It seems they are covering their asses and trying not to openly divulge or discuss what should be allowed for ownership and protecting the asses of the federal/state goverments to regulate firearms ownership. The fear I have is that the anti's will see this and say, "hey, they are saying the federal government has every right to restrict, regulate, limit firearms ownership so let's do our damnedest to make it so that civilians can only own single shot break open rifles and shotguns." A situation where they can still say "we're protecting your right to own firearms" but what is allowed for civilian ownership is quite meek and the regulations are totally permitted by the logic of their argument. The way this decision reads to me is that the 1994 crime bill is entirely legitimate, same with the 89 Ca. assaultweapons ban as well as the 1999 SB23 assault weapons ban.
Link Posted: 10/16/2001 2:47:22 PM EDT
[b]This is mediocre at most[/b]
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
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Their wording leaves out the infringement part, and they plainly state a person has the right to own firearms. Well... Kalifornia allows us to own firearms...some, and has banned lots of others. This opens the door for "common sense" laws that ban firearms deamed evil yet still allowing us to own some firearms.
Link Posted: 10/16/2001 3:06:10 PM EDT
Well, it could have been worse. But it sure could have been been a lot better. The dissent is actually pretty idiotic.
Link Posted: 10/16/2001 3:12:50 PM EDT
[b]This ruling is very bad for us!!!![/b] After reading more and more of the ruling, I'm starting to agree with the judge that says this did more to harm the right to keep and bear arms. The only good thing I see in it, would be a possible challenge to the "sporting purpose" clause. But I doubt anyone would try to run with a court case like that. I hope Emersson appeals, this ruling is bad for us. The court is basically saying, that it's an individual right but it's subject to any semi-reasonable regulation. They state that the Texas state law which does not require any expressed findings against, the person is reasonable because it is assumed that the order will not be issued unless there is "likelihood that irreparable harm will occur". What this means is it's prefectly ok for a state to ban you from owning firearms if someone fears that you will harm them.
Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country. Indeed, Emerson does not contend, and the district court did not hold, otherwise. As we have previously noted, it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms. See note 21, supra.(62) Emerson's argument that his Second Amendment rights have been violated is grounded on the propositions that the September 14, 1998 order contains no express finding that he represents a credible threat to the physical safety of his wife (or child), that the evidence before the court issuing the order would not sustain such a finding and that the provisions of the order bringing it within clause (C)(ii) of section 922(g)(8) were no more than uncontested boiler-plate. In essence, Emerson, and the district court, concede that had the order contained an express finding, on the basis of adequate evidence, that Emerson actually posed a credible threat to the physical safety of his wife, and had that been a genuinely contested matter at the hearing, with the parties and the court aware of section 922(g)(8), then Emerson could, consistent with the Second Amendment, be precluded from possessing a firearm while he remained subject to the order.(63) Though we are concerned with the lack of express findings in the order, and with the absence of any requirement for same in clause (C)(ii) of section 922(g)(8), we are ultimately unpersuaded by Emerson's argument. "There must be a likelihood that irreparable harm will occur. Speculative injury is not sufficient; there must be more than an unfounded fear on the part of the applicant.
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Link Posted: 10/16/2001 3:14:36 PM EDT
To the guys here who are not terribly excited about this ruling... I don't disagree with what you are saying. But, as the Chinese proverb goes, a journey of a thousand miles begins with a single step. [i]Emerson[/i] is that first step, and a very long stride at that. Prior to today, the precedent in the majority of the Federal Circuit courts was that the Second Amendment did not protect the individual ownership of arms. Today, a Federal Circuit court has finally broken with that precedent, in a very strong and carefully researched ruling that will be hard for the other circuits to ignore. Next steps: 1) A win in the full bench of the 5th Circuit (if an appeal is lodged there). This will force the US Supreme Court to review the issue and reconcile between the different circuit courts. 2) A win in the US Supreme Court. This may not be as difficult as you think. A majority of the justices, even the liberals, have suggested that the 2nd protects an individual right: [url]www.i2i.org/SuptDocs/Crime/35.htm[/url] After steps 1 and 2, we will have at least some protections from the Federal government. Which leads to Step 3: 3) A decision by the federal courts, (which can be assisted considerably by our friends in Congress) to "incorporate" the 2nd Amendment into the list of "privileges and immunities" of citizens protected by the 14th Amendment, and guaranteed by the federal government against depredation by states such as California and Massachusetts.
Link Posted: 10/16/2001 3:24:54 PM EDT
[Last Edit: 10/16/2001 3:21:54 PM EDT by imposter]
They start out by saying that the insane, felons, and kids may have their right to bear arms restricted. That is hard to argue with, but I think the point is that the states and not the federal government should be doing the regulating. Then they go on to hold that people with protective orders against them can have their rights taken away too. IMHO that is pretty lame; those protective orders are handed out like candy, and are grossly unfair proceedings. If they can take away your rights because of some mickey mouse thing like a protective order, you have no rights. This piece of shit is candy coated.
Link Posted: 10/16/2001 3:38:01 PM EDT
Mixed reviews too. Its a shame b/c we all had such good expectations for this. This was to be the savior. But it is a step in the right direction...hopefully it pans out to our side once again.
Link Posted: 10/16/2001 3:52:32 PM EDT
does this ruling mean I can now get a post '86 machine gun?
Link Posted: 10/16/2001 4:12:23 PM EDT
[Last Edit: 10/16/2001 4:10:23 PM EDT by Ramses]
This is a [b]HUGE[/b] first step in the journey ahead. One thing I did notice in the definition of "bear arms": ----------- "Finally, our view of "bear arms" as used in the Second Amendment appears to be the same as that expressed in the dissenting opinion of Justice Ginsburg (joined by the Chief Justice and Justices Scalia and Souter) in Muscarello v. United States, 118 S.Ct. 1911, 1921 (1998); viz: "Surely a most familiar meaning [of carrying a firearm] is, as the Constitution's Second Amendment ("keep and bear Arms") (emphasis added) and Black's Law Dictionary, at 214, indicate: "wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person." --------------- [red]"upon the person or in the clothing or in a pocket"[/red] being the key phrase here. If upheld by SCOTUS (and it WILL go there!), this could make a very strong argument that all CCW legislation is unconstitutional. Concealed carry would become an individual choice, not the state's. Like I said; a huge first step, but a very long journey still ahead.
Link Posted: 10/16/2001 5:21:51 PM EDT
Originally Posted By Ramses: This is a [b]HUGE[/b] first step in the journey ahead. One thing I did notice in the definition of "bear arms": ----------- "Finally, our view of "bear arms" as used in the Second Amendment appears to be the same as that expressed in the dissenting opinion of Justice Ginsburg (joined by the Chief Justice and Justices Scalia and Souter) in Muscarello v. United States, 118 S.Ct. 1911, 1921 (1998); viz: "Surely a most familiar meaning [of carrying a firearm] is, as the Constitution's Second Amendment ("keep and bear Arms") (emphasis added) and Black's Law Dictionary, at 214, indicate: "wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person." --------------- [red]"upon the person or in the clothing or in a pocket"[/red] being the key phrase here. If upheld by SCOTUS (and it WILL go there!), this could make a very strong argument that all CCW legislation is unconstitutional. Concealed carry would become an individual choice, not the state's. Like I said; a huge first step, but a very long journey still ahead.
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I hate to say it but you are so wrong. If you read the entire descision you will notice #17 adn #62. All rights are subject to restriction and restricting the right to carry concealed has already upheld in court.
Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (article 5) does not prevent a second trial,
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62. Likewise, the Supreme Court has remarked that the right to keep and bear arms is, like other rights protected by the Bill of Rights, "subject to certain well-recognized exceptions, arising from the necessities of the case" and hence "is not infringed by laws prohibiting the carrying of concealed weapons," Robertson v. Baldwin, 17 S.Ct. 326, 329 (1897)
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Link Posted: 10/16/2001 6:02:30 PM EDT
... absolutely this is a decision in our favor.
Link Posted: 10/16/2001 6:09:49 PM EDT
I can't tell what this will mean. The court seems to have found an individual right, but then stated it can be suspended at a summary hearing after the stating (!) of a bogus charge. I am not aware of any other constitutional rights that are so subject.
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