Trial date set in Second Amendment case

Abilene Reporter-News ^ | 3 August 2002 | AP Staff

[45Auto]

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.

[gunnedah]

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.

[mvpel]

See an effort in California to enact strict scrutiny on gun control laws.

[SUSSA]

Thanks for the link. I'll keep an eye on this. I hope it catches on.

[jdege]

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.

[45Auto]

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.

[MileHi]

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...

[SUSSA]

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.

[harpseal]

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

[harpseal]

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

[SUSSA]

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.

[Centurion2000]

Color me black -- my rifles already are

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

[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.

[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.

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.