Skip to comments.Trial date set in Second Amendment case
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.
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.
Of course they do. How else could they get away with classifying everything under the sun as a "civil rights violation"?
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.
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
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..."
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.