Posted: 3/15/2001 2:04:13 PM EDT
Where is it now? What is taking so long for the 5th Circut to rule? Or did the Federal Government drop the case after the Election? What is going on?
Anyone posting updates?
It was from Texas, a Doctor named Emerson was brought up on federal gun charges because his wife took out a restraining order on him cause they were going through a nasty divorce with aligations of domestic violence. Under Federal law its illegal for someone under a restrianing order to possess firearms.
Emersons defense is that the law violates his Second Amendment rights. The trial judge agreed. The Clinton administration appealed to the 5th circut court. Their case is that the 2nd Amendment only protects a collective right.
If the 5th Circut Court rules with Emerson, the case must go to the Supreme Court, because the 9th Circut Court has ruled that the 2nd is only a collective right in upholding Californias Roberti-Roos law. Since that would result in two different standards in different parts of the country, it would violate the Equal Protection clause. The Supreme Court would, one way or another, be forced to hear it, they could only delay the inevetable
That is a rough outline of the case. It was all over this board last summer like a rash, everyone was debating what the election would do to the Supreme court balance cause they were expecting Emerson to appear before them this year. Now we are three months into the year and no one is talking about it. Why?
I remember I was jumping for joy when he won
the first round. I recall the Judge really
made Klinton Justice look foolish.
Here is the link to the brief for the case:
Here is the link to the 2AF's dedicated Emerson page:
What does this mean?
Ashcroft Defends Individual Right, But Emerson Prosecutor Holds To Collective
by Dave Workman
A cornerstone of the US government’s argument in the case of US v Emerson is the long-held position that the Second Amendment protects a collective right rather than an individual one.
That argument may be on a collision course with the philosophy espoused recently by US Attorney General John Ashcroft.
Ashcroft told CNN’s Larry King in a Feb. 7 interview, “Law-abiding citizens have a right under our Constitution to have firearms.”
That’s not the position of Assistant US Attorney William B. Mateja in Lubbock, TX, who prosecuted Dr. Timothy Joe Emerson for violating an obscure federal gun law while under a restraining order relating to his divorce. When Emerson was declared not guilty by federal Judge Sam Cummings, on the grounds that the federal law violated his Second Amendment right to bear arms, the decision sent a shockwave through the Justice Department, and the Clinton Administration.
The government appealed the case to the 5th Circuit Court in New Orleans, where Mateja argued the government’s position that the Second Amendment does not protect an individual right. In an exclusive interview with Gun Week, Mateja reiterated that argument.
“Our position,” he stated, “is what it’s been for now many years. There is no individual right contained within the Second Amendment.…It protects only a collective right to bear arms.”
That opinion was supported in a well-publicized letter written to a citizen by former Solicitor General Seth Waxman. That letter became a centerpiece in the effort to rally gunowners to the polls last November, and it has made the rounds on the Internet.
Waxman, a political appointee under former Attorney General Janet Reno, is no longer at the Justice Department, having departed with the Clinton Administration’s exit. Barbara Underwood is acting solicitor general until President George W. Bush appoints someone to fill that position.
Emerson’s case is being watched closely by both sides of the gun rights issue. He was charged under a 1994 federal law that automatically prohibits persons under a restraining order for apparently making threats to his estranged wife and her boyfriend. Emerson had apparently not been advised about the federal statute at the time the order was issued.
Emerson was acquitted in state court of charges relating to the incident. But the federal indictment remained in effect, because Emerson owned a 9mm Beretta pistol while under the order.
In addition to ruling that Emerson’s Second Amendment right had been violated, Cummings also ruled his Fifth Amendment right had been violated when the state judge did not advise him of the federal statute.
Mateja is waiting for the decision of the 5th circuit on the Emerson appeal. If the ruling favors Emerson, and declares the law unconstitutional—thereby affirming the individual right interpretation of the Second Amendment—he could not say whether the decision will be appealed to the Supreme Court.
However, he did hint that the case could go that far.
Acknowledging that the Supreme Court has occasionally handed down rulings in the past that have upset long-held doctrines, Mateja remarked, “Yes courts come to epiphanies, but generally those epiphanies are arrived at by the Supreme Court. Our position is that it’s not the place of the 5th Circuit to come to one of these epiphanies.”
If the Circuit Court sides with the government in its Emerson ruling, Mateja would not say whether that would open the floodgates in Texas to more aggressive prosecution of federal gun law violations. He did state, “We are an extremely aggressive district in prosecuting gun cases. The ‘Texas Exile’ program prosecutes every gun case and particularly every gun case involving a person who has a violent felony.”
Mateja appealed to Gun Week to straighten out the image that’s been created of him in the coverage of the Emerson case.
“I’ve been portrayed as someone who’s had the strings pulled by the Clinton/Gore Administration,” he said. “But the government’s position (on the Second Amendment) has always been the same.
“The government is not trying to take guns away from the people,” he continued. “We’re trying to construe the Constitution the way we’ve done it for years and years."
He said the “fact that there is not a Constitutional right” for individuals to own firearms, under the current government interpretation of the Amendment, does not mean the government will move to seize those guns. Noting that there is no recognized Constitutional right to own and drive a car, either, but that does not mean people will be told they can’t own or drive cars.
Mateja argued that the Second Amendment was “a creation” whereby the anti-federalists were appeased by James Madison.
“There was a fear that the government’s right to have a standing army,” he postulated, “that was proscribed by the Constitution would somehow jeopardize the states’ right to rise up against the federal government if the federal government overreached the Constitution and impermissibly violated the Tenth Amendment, which gave states rights. The Second Amendment basically creates a right for the states to be able to arm themselves, i.e., their militias, so as to act as a check against the federal government and its standing army.”
During his “Larry King Live” appearance, Ashcroft also reiterated his promise, made during confirmation hearings, that he would vigorously enforce existing gun laws. Increased federal involvement, as is the case with Project Exile in Virginia, the King County, WA, Firearms Crime Coalition and similar programs around the county, also got the nod from the new attorney general. Those programs are designed to bring the full force of existing federal law against armed violent felons.
Is Ashcroft setting this up as a "straw man" to get the case before the US Supreme Court? And if so is he going to throw the case on behalf of gun owners or not?
I'm sure y'all will remember back in January, 1993, the first thing that Bill the Boy Wonder Clinton did was to dismiss all of the United States Attorneys across the United States. I believe that the number was 99, or so.
His move was unprecedented in Presidential History. Even now, most United States Attorneys are still in place from the Clinton Administration (such as Mary Jo White in Manhattan, NY).
So it wouldn't surprise me if the local Federal Prosecutor (Mateja, or someone in that office) is allowed to go forward with the appeal of this decision. The case should be dropped by the Ashcroft Justice Department.
This is a moment of truth, I think, for the new administration.
Let's see if OUR votes counted for something in this election. Or, if the spectre of General Janet Reno still overshadows the Department of Justice.
Funny you mention this, I get the 5th circuit cases emailed to me when they are released. Today I got a case entitled "emerson" and my heart skipped a beat! Wasn't the emerson we are waiting on though. I think the court will rule on the 5th amendment issue, thus the 2nd anemdment issue would be moot and they need not address it. In any event, though a split would exist in the circuits, SCOTUS would not automatically grant cert and hear the case.
This is the case where the judge asked the prosecutor "so you are saying the gov't postion is I have no constitutional right to own the shotguns and rifles I have at home in my gun cabinet"? And the prosecutor said "that is the gov't position". The 5th circuit decison, I believe will go in our favor. What is taking so long? Maybe the judge is writting a "bullet proof" decision. We can only hope he writes something so compelling it will never be reversed.
I sure hope so, akrazy.
But I think the idea of Emerson going in our favor, and thus ruling most gun laws unconstituional is rather far fetched. Our liberal society would never allow that.
Well now, that's the beautiful thing about it... our liberal society doesn't have a say. Only the court.
Just for kicks, "what if", in the end, it's decided that the 2nd amendment means what it say's and individuals do have the right to keep and bear arms. What laws automatically become null and void?
Imagine what could happen overnight. I've saved some cash just for the occasion. Options increase, prices decrease.
On a side note. The second amendment states "people" having the right to keep and bear arms. The Fed's are arguing that the "people" are really the "State(s)". If this is so, then who are the "people" who have the right to peaceably assemble in the 1st amendment? Those "people" in the 4th amendment who are secure in their persons, houses, etc. are who? Who are the "people" who retain rights in the 9th amendment? And to really complicate matters the 10th amendment mentions both the "States" and the "people". Who's who?
It seems to me that the Constitution say's people when it means people and States when it means States.
If "people" is determined to actually means "States" in the 2nd amendment then this will soon be the least of our troubles.
The first amendment mentions neither until the assembly clause ---- sounds like fair game to me.
The 4th amendment would mean the Feds couldn't raid the States property without a warrant. You "people" are out of luck on this one.
If the "people" are the "State" then who the heck is the "State" in the 6th amendment? Maybe the central government. There you go, "State" means Federal Government. Now it's making sense.
Again, the 9th amendment. The only "people" to retain rights are the "States". I ain't a member of the ACLU but I think even they would have a problem with this.
Ditto on the 10th amendment. Hey, what do we need a 10th amendment for anyway. Check this amendment out. Here it is in total: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Who's who in this amendment?
The point is we know who, who is. It's very clear who, who is. It's also very clear what is happening and what will continue to happen (guns not withstanding) if the country continues to allow their Constitution to be, in the lexicon of the day, "parsed".
So, what if? I either get my rights back or we continue to lose them.