Update on Emerson (Appeals)

SAF email ^ | 5-10 | Dave LaCourse

[Dan from Michigan]

Just a quick one today, but it provides LOTS of reading for you.

As you have probably heard, the Justice Department now admits that the Second Amendment is an individual right. However, they are doing so in briefs trying to prevent the hearing of two Second Amendment cases -- Emerson's and Haney's.

The Haney case is about a dumb guy who walked into a police station and said he had unlicensed machine guns and that they couldn't do anything about it. He likely did this on his own, without consulting gun rights groups with attorneys, and he is now in jail. Hopefully the Supreme Court will ignore his case as he did not present a strong argument at trial, and therefore his poor planning could harm all gun owners as it is unlikely that his case could be salvaged in appeals.

The more interesting case is, of course, U.S. v. Emerson. Since Emerson was never convicted of a crime, and was subject only to a boilerplate, civil divorce court restraining order rather than a criminal domestic violence restraining order, SAF has maintained that his right to own a gun should not have been eliminated so easily.

Without Emerson's appeal to the Supreme Court, funded mostly by SAF in cooperation with numerous small contributors with high dollar supporting organizations in the Fifty Caliber Shooters' Policy Institute, KeepAndBearArms.com and the Washington Arms Collectors, it is unlikely that the Justice Department would have bothered with the meaning of the Second Amendment in the Haney case.

In short, our efforts made a difference! And this provides more authoritative support that the Second Amendment is an individual right in future lawsuits.

But if the Supreme Court doesn't take a Second Amendment case, then a future Administration could change the interpretation of the Second Amendment again.

For this reason, we hope the nation's highest court will accept the Emerson case, and decide this issue clearly for the first time in over 200 years.

For more information, read the Government Briefs in Emerson and Haney linked off of here:

http://www.saf.org/pub/rkba/news/EmersonFix.htm

Read News and Editorial Coverage of this Justice Department change here:

http://www.saf.org/pub/rkba/news/EmersonAppealNews.htm

Read about the Emerson Defense Fund here:

http://www.saf.org/pub/rkba/press-releases/EmersonDefenseFund.htm

Donate to the Emerson fund here:

http://www.mainstream.net/saf/contribute/contribute_form.html

Thanks again for everything!

[MonroeDNA]

The Washington Post linked article blew me away. Other than the rant, they actually quoted the 2nd ammendment correctly as written:

Historically, the Justice Department has adopted a narrow reading of the Constitution's Second Amendment, which states that "a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

This is the way it was written, and approved by the states.

When you read copies of the constitution, they read:

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Some idiot a long time ago, without approval by anyone, inserted the extra two commas during publication, and half the battle (at least) since has been because of them. English major Freepers, please help me out. Plese explain (better than I can) the difference between the two sentences.

Grammer impaired, I humbly await....

[Sandy]

Whew. I finally got a chance to read the Haney brief. I wasn't even familiar with this case until now. Apparently this guy's sole intention was to set up a challenge to the federal machine gun ban.

Here, from the petition for a writ of certiorari, is the question presented to the Supreme Court:

QUESTION PRESENTED

Whether the Second Amendment to the Constitution guarantees an individual right to possess a machinegun.

That's it. That's the only question. No 5th Amendment due process stuff, no commerce clause challenge, nothing but that one fabulous question. And he's using Emerson as a precedent.

Who's representing this guy? Do you know? I can't believe this case hasn't gotten more publicity than it has. wtf?

[dpwiener]

there are some liberal professors such as Laurence Tribe and Sanford Levinson who while conceding that the individual interpretation is indeed correct, quickly add that does not mean ipso facto that reasonable restrictions cannot be applied in certain defined circumstances.

I'd much, much rather be arguing with the liberals over questions of "reasonable restrictions" than arguing over whether an individual right to keep and bear arms exists at all. It would be like arguing over whether the 1st Amendment protects virtual child pornography. Sure it may be an important issue, but not nearly so important an issue as whether individuals have a free-speech right to criticize elected officials.

[bvw]

Hooray for Mr. Haney!

[Sandy]

From the Haney brief:

The government agrees with petitioner that the Fifth Circuit's decision in Emerson reflects a sounder understanding of the scope and purpose of the Second Amendment than does the court of appeals' decision in the instant case. Petitioner's constitutional challenge to Section 922(o) does not warrant this Court's review, however, because the statutory ban on private possession of machineguns is valid under either analytic approach. The court in Emerson recognized that the right to keep and bear arms protected by the Second Amendment is subject to "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." 270 F.3d at 261. And the court described the right in question as a right to possess firearms, such as a pistol, "that are suitable as personal, individual weapons," id. at 260 - a description that does not encompass the machineguns at issue here. Nothing in Emerson suggests that the Fifth Circuit would find a Second Amendment right implicated on the facts of this case. Nor does anything in Emerson, which upheld a restriction on firearms rights for individuals subject to a domestic violence restraining order under 18 U.S.C. 922(g)(8), indicate that the Fifth Circuit would find the prohibition on possession of a machinegun unreasonable.

Although the courts of appeals are in disagreement concerning the abstract question whether the Second Amendment protects an individual right to bear arms for reasons unrelated to militia service, no circuit conflict exists on the constitutionality of 18 U.S.C. 922(o) or of any other firearms prohibition contained within Section 922. Because there is no basis for concluding that the outcome of this case would have been different had it arisen in the Fifth Circuit, petitioner's Second Amendment Claim does not warrant further review.

I like this case. A lot. I hope the Court takes it.

[gieriscm]

Actually Haney wasn't all that smart. He could have made the same case without getting himself charged with a felony simply by submitting a Form 1, which is a tax form required to manufacture an NFA device such as a machine gun, and then sued the BATF in court when he got turned down. Since he never would have posessed a machine gun, he wouldn't have spent any time in jail - time he could have spent working to pay an attorney. He'd also retain all of his civil rights, like the right to own firearms and the right to vote.

[Sandy]

Granted, Haney sounds like an idiot. And having a public defender certainly didn't help his case. If he had someone good representing him, this case could kick ass. imo

[Abundy]

Just remember these three words: "Standard of Review."

The real question is not whether the Second Amendment is an individual right, the question is what standard of review is employed to determine if a law seeking to regulate that Right is Constituitonal.

A fundamental right is analyzed using "strict scrutiny" and in Emerson, after deteriming that the Second Amendment is a fundamental, individual right, the Court used a lower standard - "rational basis." VAWA can't withstand a strict scrutiny analysis.

The key is for Emerson's attorneys to get SCOTUS to rule that the proper SOR is "strict scrutiny" - that will invalidate most of the current gun control laws - they could never stand the "scrutiny."

Regards...

[weaponeer]

The key is for Emerson's attorneys to get SCOTUS to rule that the proper SOR is "strict scrutiny" - that will invalidate most of the current gun control laws - they could never stand the "scrutiny."

Thanks for that explanation. It cleared things up for me a bit.

Boy, I remember just a few years ago when you were (IIRC) a cop working on his law degree. I think we even had a few disagreements here on FR back then. Well, that law degree must have got ya some smarts, cuz we seem to be totally in sync in our thinking now! :>)

Please continue to keep us informed of your take on this case.

Regards, weaponeer

[StopGlobalWhining]

"A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."

(1) Is the grammatical structure and usage of this sentence and the way the words modify each other, identical to the Second Amendment's sentence?; and

(2) Could this sentence be interpreted to restrict 'the right of the people to keep and read Books' _only_ to 'a well-educated electorate' -- for example, registered voters with a high-school diploma?"

THE UNABRIDGED SECOND AMENDMENT

[45Auto]

Why wouldn't Ashcroft want a strong 2A case to get to the Supreme Court, and get a concrete ruling? He's pro-gun isn't he?

Sure, he's pro gun; but he's also a pragmatic man. And Bush is a moderate on gun issues, e.g., he's in favor of AW bans. The short answer to your question is if the US SC rules correctly on the 2nd, and concurs with the excellent dicta of the 5thCircuit in Emerson, then it MUST analyze the last four words of the the 2nd: shall not be infringed. The bastards in both parties are really afraid of this. The SC (except for maybe Thomas and Scalia) is also very, very afraid to "do the right thing" because it would mean that about 99% of the federal gun laws (including the 1934 NFA which outlawed full auto) would not only be null and void, those state laws which infringe would be subject to suits to overturn them from every corner of the nation. In my opinion, this would be a good thing. However, the Repubos and Ashcroft really do not want the SC to rule on the 2nd since they would much rather simply maintain the status quo until the next administration can take over and screw up the 2nd again. Its one thing to say that an administration thinks that the 2nd is about an individual right, and its quite another to actually take steps to repeal unconstitutional gun laws. What the Bush administration recommends to Congress about the soon to be sunsetted 1994 AW ban will speak volumes about just how much they revere the Constitution and the RKBA.

[zip]

Ping

[ninenot]

A loss here, and we are screwed big time

Not if you own unregistered armaments, and lots of them.

At least it will take them quite a while to get their hands on yours...

[ninenot]

While it is true that the Supremes used the 'militia' interpretation in the 1939 case, is it not also true that they decided that all able-bodied men were, in fact, members of 'the militia,' and could possess any weapons typically used by the military?

(In this case the weapon in question was a sawed-off shotgun, I think--and the military DOES use them.)

Thus, 'the militia' becomes US--and now includes our womenfolk, also eligible for military service.

Ain'a??

[hchutch]

We need this fight on good ground.

The lessons of John Buford at Gettysburg are still valid, 139 years later.

[ninenot]

There's also an interesting case now at Appeals level in Wisconsin.

Seems a small-time crook committed a robbery and was in possession. He gets nailed for possession.

His lawyer argues that Wisconsin's ban on possession is a violation of the 2A, (separate from the robbery count.)

The crook loses, AND APPEALS!!

In two years or less the Wisconsin Supremes will have to rule on the case.

IMHO, the Wisconsin ban is patently contrary to the 2A (no CCW without extra-special reasons.)

We shall see.

[William Terrell]

For years, I've been convinced that we are in danger of being deprived of our guns. We've been headed in a troubling direction. It's azimuth can be plotted from the past two decades of social events. There will be a point on this compus heading where this social change can't continue if the people are armed.

It's pretty clear to me that the leadership for more decades than that, repub and demo, have been and are invested in our present social and economic direction. And if I can figure this necessity out, so can they.

They have a problem, though. A change of this mass can't hold on the cusp too long. The natives notice the shadow of impending doom and get restless. I think a grasp for power from lust, instead of a rightful purpose, is weak until fully formed and it has to form fast past a certain stage. I believe we're in that stage now.

Trouble ahead.

[an amused spectator]

The Haney case is about a dumb guy who walked into a police station and said he had unlicensed machine guns and that they couldn't do anything about it. He likely did this on his own, without consulting gun rights groups with attorneys, and he is now in jail. Hopefully the Supreme Court will ignore his case as he did not present a strong argument at trial, and therefore his poor planning could harm all gun owners as it is unlikely that his case could be salvaged in appeals.

Actually, I believe that Haney did us all a HUGE favor:

http://www.kscourts.org/ca10/cases/2001/08/00-6129.htm

Ebel, David M.

Born June 3, 1940, in Wichita, KS

Federal Judicial Service:
U. S. Court of Appeals for the Tenth Circuit
Nominated by Ronald Reagan on December 18, 1987, to a seat vacated by William Edward Doyle; Confirmed by the Senate on April 19, 1988, and received commission on April 20, 1988.

Education:
Northwestern University, B.A., 1962

University of Michigan Law School, J.D., 1965

Professional Career:
Law clerk, Justice Byron White, Supreme Court of the United States, 1965-1966
Private practice, Denver, Colorado, 1966-1988
Adjunct professor of law, University of Denver Law School, 1987-1989
Senior lecturing fellow, Duke University Law School, 1992-1994

Race or Ethnicity: White

Gender: Male

Anderson, Stephen Hale

Born January 12, 1932, in Salt Lake City, UT

Federal Judicial Service:
U. S. Court of Appeals for the Tenth Circuit
Nominated by Ronald Reagan on July 23, 1985, to a new seat created by 98 Stat. 333; Confirmed by the Senate on October 16, 1985, and received commission on October 16, 1985. Assumed senior status on January 1, 2000.

Education:
University of Utah College of Law, LL.B., 1960

Professional Career:
U.S. Army 44th Infantry Division, 1953-1955
Trial attorney, Tax Division, U.S. Department of Justice, 1960-1964
Private practice, Salt Lake City, Utah, 1964-1985


Race or Ethnicity: White

Gender: Male

Murphy, Michael R.

Born August 6, 1947, in Denver, CO

Federal Judicial Service:
U. S. Court of Appeals for the Tenth Circuit
Nominated by William J. Clinton on July 25, 1995, to a seat vacated by Monroe G. McKay; Confirmed by the Senate on August 11, 1995, and received commission on August 14, 1995.

Education:
Creighton University, B.A., 1969

University of Wyoming, J.D., 1972

Professional Career:
Law clerk, Hon. David T. Lewis, U.S. Court of Appeals, Tenth Circuit, 1972-1973
Private practice, Salt Lake City, Utah, 1973-1986
Judge, Third District Court of Utah, Salt Lake City, Utah, 1986-1995
Presiding judge, 1990-1995


Race or Ethnicity: White

Gender: Male

===========================================

"...Our published Tenth Circuit opinions treat the Second Amendment similarly. In United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), we rejected a Second Amendment challenge to the federal law criminalizing possession of an unregistered machinegun, 26 U.S.C. § 5861(d). We found no evidence that the firearm in question was connected with a militia, even though the defendant was nominally a member of the Kansas militia and the "Posse Comitatus," a militia-type organization registered with the state:

The purpose of the second amendment as stated by the Supreme Court in United States v. Miller was to preserve the effectiveness and assure the continuation of the state militia. The Court stated that the amendment must be interpreted and applied with that purpose in view. To apply the amendment so as to guarantee appellant's right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy. This lack of justification is even more apparent when applied to appellant's membership in "Posse Comitatus," an apparently nongovernmental organization. We conclude, therefore, that this prosecution did not violate the second amendment."

....

Consistent with these cases, we hold that a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state's ability to maintain a well-regulated militia. This is simply a straightforward reading of the text of the Second Amendment. This reading is also consistent with the overwhelming weight of authority from the other circuits. See, e.g., United States v. Napier, 233 F.3d 394, 402 (6th Cir. 2000) (holding that the Second Amendment right "is limited to keeping and bearing arms that have some reasonable relationship to the preservation or efficiency of a well regulated militia" (quotation marks omitted)); Gillespie v. City of Indianapolis, 185 F.3d 693, 711 (7th Cir. 1999) (rejecting a Second Amendment challenge to 18 U.S.C. § 922(g)(9) because the plaintiff "does not argue (and we do not believe under any plausible set of facts that he could) that the viability and efficacy of state militias will be undermined by prohibiting those convicted of perpetrating domestic violence from possessing weapons in or affecting interstate commerce"), cert. denied, 528 U.S. 1116 (2000); United States v. Wright, 117 F.3d 1265, 1272-74 (11th Cir. 1997) (holding that a criminal defendant must demonstrate a reasonable relationship between possession of a machinegun and the preservation or efficiency of a militia actively trained and maintained by the state), amended on other grounds by 133 F.3d 1412 (11th Cir. 1998); United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996) (same); United States v. Hale, 978 F.2d 1016, 1019-20 (8th Cir. 1992) (same).

Applying this standard, it is clear that § 922(o) is facially constitutional. Section 922(o)(2)(A) sets forth a specific exemption for possession of a machinegun "under the authority of" a state; therefore, that section cannot impair the state's ability to maintain a well-regulated militia. Accord Wright, 117 F.3d at 1274 n.19. Haney does not contend that his possession of the machineguns at issue in this case was under the authority of Oklahoma.

Nor has Haney proven several facts logically necessary to establish a Second Amendment violation. As a threshold matter, he must show that (1) he is part of a state militia; (2) the militia, and his participation therein, is "well regulated" by the state; (3) machineguns are used by that militia; and (4) his possession of the machinegun was reasonably connected to his militia service. None of these are established.

The militia of the Second Amendment is a governmental organization: The Constitution elsewhere refers to "the Militia of the several States," Art. II, § 2, and divides regulatory authority over the militia between the federal and state governments, Art. I, § 8. See also Perpich v. Dep't of Defense, 496 U.S. 334, 345-46 (1990) (describing the "dual enlistment" provisions of the militia statutes). Thus, the militia does not include the private anti-government groups that sometimes refer to themselves as "militias." Haney is not part of the "well regulated" militia, that is, a "militia actively maintained and trained by the states," Wright, 117 F.3d at 1272. At best, Haney claims to be a member of the "unorganized" (and therefore not a "well regulated" state) militia. See Okla. Stat. Ann. Tit. 44, § 41 (dividing the population of able-bodied persons between the ages of seventeen and seventy into the National Guard, the Oklahoma State Guard, and the "Unorganized Militia"). Haney does not claim to be a member of the National Guard or the Oklahoma State Guard, and he has submitted no evidence that the Oklahoma unorganized militia and his participation therein are well-regulated by the State of Oklahoma. Accord Wright, 117 F.3d at 1274 ("[T]he substantial segment of the population comprising the unorganized militia is not well regulated as that term was intended by the drafters of the Second Amendment."); see also Oakes, 564 F.2d at 387 (noting that technical membership in the state militia is insufficient to show a Second Amendment violation); Hale, 978 F.2d at 1020 (same). Nor has Haney submitted any evidence that machineguns of the sort he possessed are used by the militia, or that his possession was connected to any sort of militia service.

In sum, § 992(o) does not impair the state's ability to maintain a well-regulated militia and therefore does not violate the Second Amendment.
===============================================

Two of these judges are Reagan appointees, for God's sake, and they seem to believe that the Founders were worried about the federal government confiscating the weapons of the National Guard. The trouble is just this:

How many of our legal-system "Norman lords" actually believe this clap-trap? What is the percentage - 70%, 80%?

The ruling class is hanging this Ashcroft/Olson stuff out there as a sop to us peasants, but when push comes to shove, they're going to reach into their little bag of tricks and pull out Miller, just like LATWP's pet judge is telling us that we can stand around a real town square discussing a paper article somebody ripped out of the daily rag, but we can't stand around a virtual town square discussing an electronic article somebody ripped out of the daily online rag, "'cause there's laws, ya know, and youse peasants don't unnerstan 'em."

[an amused spectator]

BTW, Dan - if you want to be a real hero in Michigan this fall, send 2 registered letters to Carl "The Commie" Levin.

• 1. Senator: Do you believe that the 2nd Amendment is an individual or collective Right? Please do not explain your position, just indicate "individual Right" or "collective Right".
• 2. Senator: Do you believe in paying reparations to the descendants of slaves, yes or no?

As one of his constituents, he is bound to answer you. Publish the results here on Free Republic, and Carl the Commie would be in a lot of hot water.