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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
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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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