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Trial date set in Second Amendment case
Abilene Reporter-News ^ | 3 August 2002 | AP Staff

Posted on 08/05/2002 10:10:12 AM PDT by 45Auto

A former San Angelo doctor who challenged a federal law in Second Amendment case will be retried Aug. 19 in federal court in Lubbock.

The date was set Friday for Timothy Emerson, who will stand trial for possessing a firearm while under a restraining order.

The 5th Circuit Court of Appeals in October overturned U.S. District Judge Sam Cummings' ruling that dismissed the charge against Emerson.

Emerson was charged in 1998 after buying a pistol while under a restraining order during a divorce proceeding.

The case had gun rights implications because Cummings ruled that the federal statute used to charge Emerson violated his Second Amendment right to bear arms.

The 5th circuit determined that an individual has a right to bear arms -- a victory for gun rights advocates -- but that the right could be restricted under some circumstances.

Emerson faces a maximum five-year sentence and $250,000 fine, U.S. Assistant Attorney Roger McRoberts told the San Angelo Standard-Times in Saturday's editions.

Emerson's attorney, David Guinn, couldn't be reached for comment.

In June, the Supreme Court said it would not hear the case and a similar gun-rights case.


TOPICS: Constitution/Conservatism; Crime/Corruption; US: Texas
KEYWORDS: banglist; emerson; retrial

1 posted on 08/05/2002 10:10:13 AM PDT by 45Auto
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To: 45Auto
What puzzles me is that he was found not guilty on the criminal charge that formed the basis of the restraining order...
2 posted on 08/05/2002 10:13:17 AM PDT by mvpel
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To: *bang_list

3 posted on 08/05/2002 10:48:47 AM PDT by Joe Brower
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To: mvpel
What puzzles me is that he was found not guilty on the criminal charge that formed the basis of the restraining order...

The state charges did not form the basis of the restraining order. The restraining order came before the incident which resulted in both the state charges and the federal charges of being in possession of firearms while subject to a "domestic violence" restraining order. But even if this had been a double jeopardy kind of affair, it wouldn't matter, as the federal courts now consider state and federal prosecutions, even if over the exact same acts, to be separate maters, not subject to "double jeopardy" constraints.

4 posted on 08/05/2002 10:51:31 AM PDT by El Gato
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To: El Gato
"...courts now consider state and federal prosecutions, even if over the exact same acts, to be separate matters, not subject to "double jeopardy" constraints."

Of course they do. How else could they get away with classifying everything under the sun as a "civil rights violation"?

5 posted on 08/05/2002 11:15:29 AM PDT by Redbob
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To: mvpel
Sort of like the "justice" that the surviving Branch Davidians experienced. Acquitted of murder charges against them for killing the (former Clinton bodyguard) ATF agents on the day of the raid, they were nevertheless convicted of weapons "enhancements" to the crime they had just been acquitted of, and were sentenced to maximum jail for the "enhancements" - 40 years federal prison. For using a gun in a crime they didn't commit.
6 posted on 08/05/2002 11:46:11 AM PDT by coloradan
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To: Joe Brower
In June, the Supreme Court said it would not hear the case and a similar gun-rights case.

I'm not sure what the "other" case was that the cowards on the US SC decided wan't important enough to hear. If the case had been about whether animal owners should be called "owners" or "Pet guardians", I'm sure the court would have lined up to hear it.

So far, all I hear from the Bush crowd is platitudes and rhetoric. I fear that nothing postive in terms of repealing certain egregiously unconstitutional gun laws will be accomplished under this administration.

7 posted on 08/05/2002 12:05:47 PM PDT by 45Auto
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To: Joe Brower
Here's a link to Solicitor General Olson's brief the the US SC on Emerson urging them NOT to review the case. Solicitor General's Emerson Brief
8 posted on 08/05/2002 12:12:51 PM PDT by 45Auto
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To: 45Auto
I fear that nothing postive in terms of repealing certain egregiously unconstitutional gun laws will be accomplished under this administration.

I concur 100%. Wouldn't want to rock the boat and risk undercutting over 20,000 gun laws built up over the last sixty years now, would we?

The other case was U.S. vs. (John Lee) Haney

9 posted on 08/05/2002 12:13:34 PM PDT by Joe Brower
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To: Joe Brower
Being a firearm owner in California today is like being a Jew in Germany in 1940 or like being a Christian during Roman occupation of Jerusalem, or like being black in Alabama in 1950.
10 posted on 08/05/2002 12:28:58 PM PDT by 45Auto
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To: 45Auto
like being black in Alabama in 1950.

GMTA! This is exactly the tack I took when debating the point with liberals at work and the leftmedia during the counter-MMM rallies. Twice when I used it, the reporter/reporterette was black, and it had a telling effect. I'd follow up with "Color me black -- my rifles already are".

I actually had one say (off camera), "I think I see your point..."

11 posted on 08/05/2002 12:39:17 PM PDT by Joe Brower
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To: 45Auto
Let me get this straight. Our "pro-gun" Bush/Ashcroft administration is prosecuting this guy and trying to toss him in prison?!
12 posted on 08/05/2002 12:41:25 PM PDT by Atlas Sneezed
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To: 45Auto
Yeah, for sure. But some of us WILL own them despite such actions on the part of those who are supposed to know better. Oh, well, maybe one day we can return to the Constitution without any blood being shed (any MORE blood that is; there has already been too much INNOCENT blood shed by the tyrant... shameful as it is to admit!)
13 posted on 08/05/2002 12:59:34 PM PDT by dcwusmc
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To: Beelzebubba
Yeah. The administration got the Supremes to not take the appeal. They say that they feel it's an "individual" right BUT want to be able to say WHO can own WHAT weapons... so what's any different than Janet "Barbecue" Waco?
14 posted on 08/05/2002 1:18:23 PM PDT by dcwusmc
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To: mvpel; All
What the Fifth Circuit Court ruled, and the SCOTUS left unchallenged by refusing to grant cert., is that the Second Amendment protects a personal right but not a fundamental right.

It is called the standard of review. The Fifth Circuit applied the lowest standard called rational basis. The highest level of scrutiny is called strict scrutiny.

Rational review means that the government can infringe on the right for almost any reason they chose. It turns the right into a privilege.

Under rational review the burden of proof is on the challenger. Under strict scrutiny the government has to prove that the law is necessary to achieve a compelling or overriding government purpose. The government has to also show that they are taking pains to infringe on the right as little as possible while still accomplishing the overriding purpose.

Strict scrutiny is used to look at laws that infringe on the right to self incrimination, the right to worship etc.

By using the rational review standard, the judges can uphold the obvious, that the Second Amendment protects a personal right, while allowing almost any infringement the government wants to come up with.

By arguing that the SCOTUS shouldn't hear the case because the Fifth Circuit ruled right, the Ashcroft "Justice" Dept. Can claim they recognize the individual right while defending all the draconian infringements we suffer under today.

Back when Ashcroft wrote his letter to the NRA supporting a personal right to own and carry arms, I warned that the statement was meaningless until he expressed support for strict scrutiny in regard to the Second Amendment. The NRA and several other civil rights groups jumped the gun and celebrated his statement as if it were support for our basic human right to be armed.

We need legislation instructing the courts to apply strict scrutiny to the right to own and carry arms. Congress has that power. We just have to force them to use it.

15 posted on 08/05/2002 2:11:43 PM PDT by SUSSA
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To: dcwusmc
see post 13
16 posted on 08/05/2002 2:15:10 PM PDT by SUSSA
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To: SUSSA
Very good summary of the issue.
17 posted on 08/05/2002 2:21:05 PM PDT by FreeTally
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To: FreeTally
Thank you.
18 posted on 08/05/2002 2:24:01 PM PDT by SUSSA
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To: SUSSA
Post 13 is mine. I presume you meant post 15 which is quite clear and. cogent. Thanks
19 posted on 08/05/2002 2:25:49 PM PDT by dcwusmc
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To: dcwusmc
Sorry about that. You are right I should have typed 15.
20 posted on 08/05/2002 2:29:26 PM PDT by SUSSA
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To: SUSSA
Your summary is dead on the mark. These politicians are all the same when it comes to the 2nd. There is only a minor difference: The demonRATS want to outright destroy the 2nd and the repubos (much to their shame, if they had any) merely want to maintain the status quo, for the moment. Their sole purpose for existence is to steal as much of the wealth of the nation as they can while in office.
21 posted on 08/05/2002 3:06:27 PM PDT by 45Auto
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To: mvpel
Never underestimate the abilty of your courts to do just as they wish. Even if they are wrong than can give you the runaround long enough to accomplish most any purpose in mind. The courts are like a game on monopoly for lawyers and the citizen catches hell. This is one big game that the rich and powerful move the general public around like pieces in a chess game.Sometime it happens to criminals also.
22 posted on 08/05/2002 3:12:23 PM PDT by gunnedah
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To: SUSSA
See an effort in California to enact strict scrutiny on gun control laws.
23 posted on 08/05/2002 3:26:10 PM PDT by mvpel
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To: mvpel
Thanks for the link. I'll keep an eye on this. I hope it catches on.
24 posted on 08/05/2002 3:41:03 PM PDT by SUSSA
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To: 45Auto
What the 5th found, when it comes down to it, is that because the law in Texas requires that a judge find that an individual presents a likely threat of violence before a restraining order be placed against him, the law is not unconstitutional - as a judicial finding of a threat of violence is sufficient due process for a temporary infringement on the individual right to keep and bear arms.

What the 5th did not find, because it wasn't at issue in the case it was hearing, was whether the state judge who issued the TRO made such a finding.

And from my reading of the transcript, he didn't.

To recap - a state judge issued a TRO against Emerson, without making a finding that he presented a threat of violence.

A federal judge declared that removing an individual's firearms rights without such a finding is a violation of the Second Amendment, and therefore the law that created the situation was unconstitional.

The 5th Circuit, in their research, discovered that Texas law did in fact require a finding of a threat of violence before a TRO was issued, and that this was sufficient due process - therefore the law was not unconstitutional.

What remains unsettled was whether the state judge did in fact make such a finding. In other words, the 5th's decision changed the question of whether the state judge correctly followed an unconstititional law, or whether the state judge incorrectly followed a constitutional law.

At this point, the federal judge could, and in my opinion should, find that the state court did not make a finding of a threat of violence, despite the requirement in Texas law that he do so, before issuing a TRO - and that the federal prohibition did not therefore apply.

25 posted on 08/05/2002 3:42:06 PM PDT by jdege
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To: jdege
From Olson's Brief:

"If petitioner is acquitted at trial, or if any conviction is reversed on independent grounds, his constitutional challenges to Section 922(g)(8) will become moot. If petitioner is found guilty and his conviction is affirmed on appeal, he will be able to raise the instant claims -- along with any other challenges petitioner might have to the judgment of conviction -- at the conclusion of proceedings in the lower courts."

So, the matter of whether the trial judge erred in either the constitutionality or the application of the law, remains open at this time.

26 posted on 08/05/2002 5:24:00 PM PDT by 45Auto
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To: El Gato
as the federal courts now consider state and federal prosecutions, even if over the exact same acts, to be separate maters, not subject to "double jeopardy" constraints.

That is why respect for the law has become optional...

27 posted on 08/05/2002 6:44:33 PM PDT by MileHi
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Comment #28 Removed by Moderator

Comment #29 Removed by Moderator

To: A tall man in a cowboy hat
The idea that rights are absolute is wrong. The state has limited overriding reasons for infringing on a right. For instance, it is an infringement on your right to carry a gun to not let you carry it at the White House. Even under strict scrutiny the law baring your right to carry at the White House would be upheld.

Another example is your right to life. The state can infringe on your right to life if you commit treason or murder. We have capital punishment because the state has an overriding interest in punishing murder, treason, etc. If the right to life were absolute there would be no capital punishment.

In certain very limited cases the state may infringe on any right but has to take care that the infringement is limited to the smallest infringement possible to accomplish the overriding necessity.

30 posted on 08/06/2002 8:39:56 AM PDT by SUSSA
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Comment #31 Removed by Moderator

Comment #32 Removed by Moderator

To: A tall man in a cowboy hat
My opinion is that the fifth circuit did not go far enough. They ruled it an individual right that can be taken away without a criminal trial. A person's liberty should only be taken away for a criminal offense.

Stay well - Stay safe - Stay armed - Yorktown

33 posted on 08/06/2002 4:03:45 PM PDT by harpseal
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To: A tall man in a cowboy hat
My opinion is that the fifth circuit did not go far enough. They ruled it an individual right that can be taken away without a criminal trial. A person's liberty should only be taken away for a criminal offense.

Stay well - Stay safe - Stay armed - Yorktown

34 posted on 08/06/2002 4:04:06 PM PDT by harpseal
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To: A tall man in a cowboy hat
So you think the right to own a gun is a higher right than the right to life?

Sorry, but no right is absolute and you will never get a court or a government to agree that one is.

35 posted on 08/06/2002 7:07:10 PM PDT by SUSSA
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To: Joe Brower
Color me black -- my rifles already are

This should be on every gun owners truck/car as a bumper sticker.

36 posted on 08/06/2002 7:38:52 PM PDT by Centurion2000
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To: SUSSA
The right to own a gun is intimately tied to the right to life, as it is a means of defending it. A criminal has rights removed, that's part of the criminal's punishment, what he's objecting to is infringing on an uninfringeable right of a peaceable citizen.
37 posted on 08/07/2002 1:14:14 PM PDT by mvpel
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To: mvpel
The right to own a gun is intimately tied to the right to life, as it is a means of defending it. A criminal has rights removed, that's part of the criminal's punishment, what he's objecting to is infringing on an uninfringeable right of a peaceable citizen.

I wholeheartedly agree that the right to own and carry a gun is an indivisible part of the human right of self defense and the human right to life. That being said, no right is absolute.

Your willingness to infringe on a criminal's right to own a gun means that you see that the right is not absolute. Now we have to discuss where we want the line drawn determining what overriding state interests are going to be the basis for infringing on this basic right.

The appeals court ruling shows that they used the lowest level of judicial rule and the Bush/Ashcroft "justice" Dept. Argued that the appeals court was right. It is my contention that the right to own and carry a gun deserves the highest level of protection called strict scrutiny.

The Second Amendment should be held to the same standard as the First, Fourth, Fifth, sixth and Seventh used to be held to. However, to say that our Second Amendment right can never be infringed is to elevate it to a position it doesn't have.

His statement: "Shall not be infringed is only stated in the Second Amendment." is true but shows he is either blowing smoke or needs bo buy a dictionary. Infringe means to commit a breach or infraction of: to violate, encroach or trespass: to break abridge or weaken. In the First Amendment we find the word abridge. In the Fourth we find the word violated. The Bill of Rights would read like a shopping list if the Founders used the same word in every instance to protect every right. A right can't be infringed on if it isn't violated or abridged.

I have this argument all the time with a guy at work who believes that the right to life is absolute so the state has no right to execute anyone. I disagree and I disagree that the right to own and carry is absolute either. I just want the fewest, least intrusive, restrictions possible.

I don't think criminals should have guns while in jail. I don't think anyone should be able to carry in the White House. I don't think the insane should have guns in their asylums. And I don't think any individual should have nuclear bombs. Beyond that you have to convince me on a case by case basis that the government should be able to infringe on our right to own and carry.

By making the exceptions above I state that the right is not absolute. I don't think that too many among us would find the listed infringements too restrictive. I doubt that either you or our friend would quarrel with the listed infringements. Make no mistake, the above restrictions are infringements, but I don't think the Founding Fathers would think the above infringements are prohibited by the Second Amendment.

38 posted on 08/07/2002 1:58:23 PM PDT by SUSSA
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