June 13 will be the one year anniversary of the presentation of oral arguments before the 5th. Circuit.  Most observers felt that a decision would be reached in 2-3 months, yet here it is a year later, and we are still crossing our fingers, and holding our collective breath.

 So... I was wondering what the best and  brightest at AR15.com think will be the outcome of the case.  Should we interpret the long delay as a good or bad sign, and if we do win this battle, will Ashcroft's Justice Dept. appeal the ruling to the SCOTUS?  

In criminal matters, time always favors the defendant. Ordinarily. But this case has a lotta political baggae that keeps it from being your typical criminal case.

Emerson's side should feel a whole lot better with Ashcroft as the Atty General instead of some Gore pinhead apppointee.

I'll be holding my breath for, say, the next several months.

I wish the facts didn't involve allegations of
domestic abuse. The case is political dynamite
enough already.

This just might be Concord/Lexington 2001. [i]Wer weiss?[/i]

Eric The(WhoKnows?)Hun[>]:)]

Eric, I agree that domestic abuse is a hot button issue, but it is very important to note that Emerson was recently cleared of all state charges involving the alleged abuse.

I just hope that the judges in the 5th. Circuit take this fact into consideration.  

I was wondering about Emerson also during our So.Calif. get together at Angeles Shooting Range.  Most people predicted that a decision is usually handed down within  a year.  Well I guess we shouldn't hold our breathe.

Emerson already won his case.  This appeal is to overturn that decision.  A lot riding on it.  Gonna take some screw up at the trial level to overturn it on appeal.  

Was this with a 3-judge panel? (think so)

Two judges had quite a few firearms themselves, which is encouraging but no guarantee.

I'll speculate that the lengthy time is because they want to be sure their decision is airtight and unlikely to go before the Supreme Court.

If it does favor the defendant, and I hope like hell it does, there will be a lot of pressure on Ashcroft drummed up by a lot of liberals (women's groups, VPC, HCI, CA CW pols) to appeal it.  There will need to be an overwhelming amount of letter-writing, e-mailing, and phone-calling & other grass roots efforts by people like us.

Perhaps it should go to the  supream court.  If it does and the court rules against Emmerson (us & the second amendment) then we won't have an excuse not to pick up arms anymore and we could stop being keyboard patriots!

Don't worry, I heard a gov't official say they would never come fo rour guns. Yeah right!

So start buying ammo. My gut feeling tells me the US gun owners will loose out on the Emerson case.

Recently it was noted on one of those Emerson watching boards that there are a lot of older cases still pending before the court. Sometimes it takes a while. If the Feds lose (they appealed), Ashcroft probably won't have it appealed. It would only be law in the 5th Circuit if that is the case. We might also see the case heard en banc before that. If Emerson loses and appeals, there is no guarantee that the SCOTUS would hear the case (there are any number of good reasons why this might be so).

I would love for Ashcroft to appeal a losing decision to the supreme court. What have we to lose if it does?

If they rule against him it only means that a currently standing unconstitutional law still stands.

If they rule for him it could mean that the 2nd Amendment overrules any federal firearms law.

We need to quit beating around the damn bush and get this settled once and for all.

An Emerson Supreme Court case would be one of the biggest cases in the last century, having great affects on the power of the federal govt.....

NY, do you have a reference for this?  It would be very useful to me - I often have to defend Emerson against the whole domestic violence stuff.

Thanks!

ckapsl, go to [url]www.saf.org[/url], and you should be able to find the info you need.

ckapsl,

Some very good chunks of legal literature on the subject of Emerson are:

Judge Sam Cummings' law brief filed on the case
Fed. R. App.P.26.1  5th Circuit, TX No. 99-10331

and, Eugene Volokh's  [u]A Right of the People, Testimony to Senate Subcomittee on the Constitution[/u]. Reprinted in California political Review Nov/Dec 1998 (pgs 23-39).

Both are outstanding.

I thought this case would have to appealed to the US Supreme court regardless of the outcome.  Wasn't there a ruling in a similar case in the 9th district(?) that would contradict a ruling in favor of Emerson?

I would like to think that the appeals court is waiting for a liberal US Supreme Court Justice to retire and be replaced with a conservative before they rule.  But that is probably just my wishful thinking.

And dont forget, the 9th Circuit Court is the most overturned Circuit in the country.  They've had something like 27 out of their last 28 rulings overturned on appeal to the Supreme Court.  This is going to be a load of fun.

Kharn

I read Judge Cummings' decision, and I read several of the [i]Amicus Curae[/i] briefs (both sides), and I read the reports of the questions the bench asked the prosecuting attorney (Wm. Matteja) and his responses.  

Given all of that, I cannot see how the 5th Circuit could overturn Cummings' decision.  He puts the question on the table, dissects it in the light of original intent, tears the Miller decision a new a**hole, and concludes (rightly) that the 2nd Amendment protects an individual, not a State right.

What I think is happening is that the Court is trying to find away to render a decision that won't cause a s**tstorm.  If they do decide in favor of Emerson, I half expect the Supreme Court to not hear an appeal, although Justice Thomas has written opinions indicating that he thinks it's time to bring the matter to a close.  With John Ashcroft as AG I would not expect the government to appeal the decision - after all, it is his position that Cummings is [b]right[/b].

If the 5th Circuit rules [i]against[/i] Emerson, I think that'll be the final indication that we've chucked the Constitution out the window in favor of "Political Correctness" and that we do, indeed live in a democracy of the lowest common denominator rather than in a Constitutional Republic based on the rule of law.  In that case, I'd fully expect the Supremes to not hear an appeal.  I'd also see it as a green light for any infringement of my rights that the Congresscritters want to pass.

[sniper]

The 5th will rule on the 5th amendment portion of the case but will say that the 2nd, while and individual right, isn't an absolute right and can be subject to legislation.

At that point I think it would be safe to say that it would be time to ask for assistance from the international humanitarian organiztion of the UN in restoring the freedoms here.

UN assistance!!!  ROFLMAO.  (wiping away tears) Oh!  That's funny!

[sniper]

Yeah, they could find new headquarters outside the USA, that would help us the most.

Yeah, they could find new headquarters outside the USA, that would help us the most.

Hey darm441, and Steve in VA, you guys seem to know which end is up in relation to all things legal.
 Care to venture a prediction?

What the 9th Circuit position is quoted by the government prosecutor in the Emerson case.

From a letter


                          Dear Mr. (Name Deleted):

                          Thank you for your letter dated August 11, 2000, in which you question certain statements you
                          understand to have been made by an attorney for the United States during oral argument before the
                          Fifth Circuit in United States v. Emerson. Your letter states that the attorney indicated that the
                          United States believes “that it could ‘take guns away from the public,’ and ‘restrict ownership of
                          rifles, pistols and shotguns from all people.’” You ask whether the response of the attorney for
                          the United States accurately reflects the position of the Department of Justice and whether it is
                          indeed the government’s position “that the Second Amendment of the Constitution does not extend
                          to the people as an individual right.”

                          I was not present at the oral argument you reference, and I have been informed that the court of
                          appeals will not make the transcript or tape of the argument available to the public (or to the
                          Department of Justice). I am informed, however, that counsel for the United States in United
                          States v. Emerson, Assistant United States Attorney William Mateja, did indeed take the position
                          that the Second Amendment does not extend an individual right to keep and bear arms.

                          That position is consistent with the view of the Amendment taken both by the federal appellate
                          courts and successive Administrations. More specifically, the Supreme Court and eight United
                          States Courts of Appeals have considered the scope of the Second Amendment and have uniformly
                          rejected arguments that it extends firearms rights to individuals independent of the collective need
                          to ensure a well-regulated militia. See United States v. Miller, 307 U.S. 174 (1939) (the “obvious
                          purpose” of the Second Amendment was to effectuate Congress’s power to “call forth the Militia
                          to execute the Laws of the Union,” not to provide an individual right to bear arms contrary to
                          federal law”);


.......
                          I hope this answers your question. Thank you again for writing.

                          Yours sincerely,

                          Seth P. Waxman

Hmmmmmmm.    Not good.[:(]

I wouldn't get toooo discouraged.  If I interpreted the letter accurately, this guy is giving his own take on the situation, but isn't a policy-maker.

What I want to know is what Ashcroft thinks about this Wiliam Mateja and the people who approved his making that argument.


[red]PRK

I guess the question is if his statement is accurate:



If it [b]is[/b] accurate, it sounds not so good.

I just have a few thoughts on this:

Just becasue the Constitution or Amendments doesn't specifically lay out a right does not mean we don't have the right.

We are kind of in a bind because "our" guys will interpret the constitution strictly.  This will lead, I think, to a narrow victory.  If you interpret the constitution loosely, you can do almost anything.  Loose interpretations lead to the SCOTUS setting the rules for PGA matches.
(If nobody else finds it scary that the SCOTUS can do this, maybe I need to start taking the anti-black helicopter pills again.)

If you think we are all going to get full autos agian, you need to be on medication.  I think that any kind of ruling by the SCOTUS giving 2nd Amendment unquestionable individual status would help to roll back alot of laws, especially the AW ban and the goofy 10 round limit.

Wish in one hand and piss in the other....
And stock up on ammo.