Dan, looking at it from the point of view of a Second Amendment activist, what is your opininion of the chances that the SCOTUS will call up Emerson on a Writ? This year? Next?
Be Seeing You,
Chris
Posted on 05/10/2002 8:00:23 PM PDT by 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!
My hat's off to Alan Gottlieb, Joe Tataro(sp), and Dave LaCourse and all the rest for their hard work.
...if the Supreme Court doesn't take a Second Amendment case, then a future Administration could change the interpretation of the Second Amendment again."
That's all some of us were trying to say when other Freepers shouted at us 'Marxists' for not getting down on our hands and knees and thanking our Lord John Ashcroft of Nazareth for 'throwing us a bone'.
Dan, looking at it from the point of view of a Second Amendment activist, what is your opininion of the chances that the SCOTUS will call up Emerson on a Writ? This year? Next?
Be Seeing You,
Chris
I agree, but the question should be...Who the hell does the "admimistration" think they are?...the founders?
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.
Or the same Administration. If they can flop one way, they can flop back.
I don't see the activities governmentward being too positive. I keep thinking about the JPFO article about the coming collapse of the ss/welfare system, and the desparate need of the government to disarm the citizens before that happens. 
Doubt that. Dubya may be too dumb to know - but, if he is, his advisers aren't. Given both the famous Red-vs.-Blue county-by-county voting map of 2000 and his margins in many states he won, he cannot afford to lose even one county in 2004. That means he cannot afford to alienate even a few of us into just not voting. (It also means that the GOP is totally dependent on us for the 2002, 2004, 2006, and 2008 congressional elections - just as the Democreeps are on the NEA.)
LOL!!!!! Children. My #1 for havin' 'em!!!
*snicker snicker snicker*... Good luck! $;-)
No honestly, I sincerely mean it. *snicker*
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
Thanks for posting this -- hope you don't mind my reformatting -- I think it will make more Freepers go look at these sites, is all. Oh yeah, the contribute link does not work -- not sure why. You can get to the page from a link on the "Read about the fund" page, though. If I put the exact same html here it chokes and I don't have time to troubleshoot it -- sorry.
d.o.l.
Criminal Number 18F
Interestingly, the Solicitor General's brief filed in the Court increases the chances that it will take the case, even though it urges the Court NOT to accept the case. Sounds like a paradox, but it isn't. And maybe SG Olson intended that very paradox.
Here'e the logic: The Supreme Court has been largely ducking 2nd Amendment cases, Its last pronouncement was in 1939 when it adopted the view that the Amendment refers to military units, not individuals. But it did not entirely slam the door on the latter interpretation.
Both the legal analysis of the Circuit Court in Dr. Emerson's case, and the position taken by the SG, conflict with the last pronouncement of the Court, and with similar conclusions reached by other Circuit Courts. So, the position taken by SG Olson may compel the Court to take this case, even though Olson suggested that they should not take the case.
I hope that is the outcome, since the "Rule of Four" applies. Only if at least four Justices believe that the case is worthy of review, does the Court accept any case. So, if they accept Emerson, there is at least a reasonable chance that the Court will move to an honest and accurate reading of the 2nd Amendment.
Congressman Billybob
Click here to fight Campaign Finance "Reform" - CFR
Click here for latest: "President John Edwards -- Think About It."
Stevens, Souter, Ginsburg, and Breyer will vote for the "collective" interpretation. Rhenquist, Scalia, and Thomas will definitely go individual. Kennedy leans individual. That leaves, as always, O'Connor. She's backed Garwood before in U.S. v. Lopez, but for this case, the stakes are VERY high. A loss here, and we are screwed big time.
That was also my impression. The Justice Department has to at least nominally act like they are defending the statute in question, so that the case has two sides. But the overwhelmingly important facet of the Solicitor General's brief is that he concedes the assertion that the plaintiff in general has a 2nd Amendment individual Constitutional right to keep and bear arms (the Washington Post is very upset about this). So if the Supreme Court takes the case, both of the principals in the matter are agreeing on that issue.
It used to be that the anti-gunners would taunt the NRA and other pro-gun groups for being unwilling to push a 2nd Amendment challenge of any gun-control law all the way to the Supreme Court, for fear of the outcome. And that was true. Now the anti-gunners are terrified that the Supreme Court might take the Emerson case, and in so doing validate the individual rights interpretation of the 2nd Amendment. That sort of says it all.
The definitions, however, of these circumstances may be variously interpreted, and therein forever lies the rub. Then it's back to no right is totally absolute, that e.g., re 1st amendment, laws are created and penalties can be imposed for yelling "Fire!" as a joke in a crowded theater, for slander, etc...
The tug of war will continue on and on (that's life!), although it would be refreshing to fight from high ground for a change.
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....
Here, from the petition for a writ of certiorari, is the question presented to the Supreme Court:
QUESTION PRESENTEDThat'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.Whether the Second Amendment to the Constitution guarantees an individual right to possess a machinegun.
Who's representing this guy? Do you know? I can't believe this case hasn't gotten more publicity than it has. wtf?
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.
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.I like this case. A lot. I hope the Court takes it.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.
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...
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
(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?"
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.
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...
(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??
The lessons of John Buford at Gettysburg are still valid, 139 years later.
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.
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.
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.
"...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."
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.
What is you opinion on this subject.
PLEASE!
If you believe this to be true, please do not file a brief related to the Emerson case!
Notwithstanding the Verdugo-Urquidez (sp?)case which clearly held that "the people" in the various amendments of the Bill of Rights all do indeed refer to "The people", I assume the 1939 case you're referring to was Miller.
In Miller, the SCOTUS held that Miller's sawed-off shotgun was not protected from the NFA law because it was not a "militia weapon". Miller wasn't there to make the point that shotguns were indeed used by the military, to the dismay of German soldiers in the trenches of France in WWI. The Miller case was "about" the Second Amendment, but really said very little,` and shouldn't be considered among the top 5 or 10 citations or precedents for a Second Amendment case.
To the contrary, that's the most rational and brave RKBA case to date: the guy challenged the most central laws (NFA '34) in the cleanest method possible (no genuine criminal/immoral activity involved) and is taking the lumps (up to 33 months in jail) in order to get SCOTUS to rule on pure 2nd Amendment rights. There are no distracting issues, and the only SCOTUS options are to either affirm RKBA (all the way to unregulated MGs) or dismiss the case without comment. This is the true line-in-the-sand case we've been waiting for.
Ditto. Haney is THE case we've been waiting for. If ruled favorably, everything else falls in line; if ruled or dismissed unfavorably, things become...er...interesting.
That has been tried, and failed. Courts typically claim "lack of standing" and dismiss the suit outright. Haney FORCED the courts to address the case by being convicted of breaking a flagrantly unconstitutional law.
First we must have SCOTUS declare that we actually have RKBA, all the way up to MGs. Once we have that right, then the prohibition against poll taxes can be likewise applied.
However, the NFA '34 law was designed to circumvent such restrictions, written by legislators who tacitly acknowledged RKBA and sought some way to enact a prohibition without Constitutional transgression. This has been upheld in lower courts.
18 USC 922(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to -
(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.
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