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Update on Emerson (Appeals)
SAF email ^ | 5-10 | Dave LaCourse

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!


TOPICS: Activism/Chapters; Breaking News; Front Page News; News/Current Events
KEYWORDS: 2ndamendment; banglist; emerson; haney; saf
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To: Sandy
We're screwed if the Supreme Court takes his case and he doesn't have great representation.

Which is exactly what happened to Miller. His pro bono lawyer figured since the case was so clear cut in Miller's favor, and since he really couldn't afford to go to DC, he didn't bother. No one argued Miller's case and he lost.

51 posted on 05/13/2002 4:27:42 PM PDT by NEPA
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To: Sandy
I'm not terribly worried about Haney. The question is simple, and the answer is simple: "do citizens [not subject to any other legal disability] have the right to own a machinegun?" and "the right of the people to keep and bear arms shall not be infringed."

I'd rather he not have a hard-core high-paid lawyer to complicate and obfuscate the issue. The question is simple, and the answer is obvious; citizens should not need lawyers for simple issues of clearly-stated rights.

52 posted on 05/14/2002 7:28:23 AM PDT by ctdonath2
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To: meatloaf
Problem is...
- the $200 tax is as much as many machineguns should cost
- due to the limited supply (no new MGs), the $200 tax gets passed on to the next purchaser (buyer pays the tax for every prior owner)
- due to the limited supply (no new MGs), the base price has increased an order of magnitude (a price-it-out-of-existance legal effect)
- many chief LEOs refuse to sign the paperwork, voiding the transfer
- the 10-years-in-prison-and-$250,000-fine punishment for even a minor goof in paperwork severly chills the exercise of the "right"
- processing the paperwork can take 6 months

Yeah, technically MGs are still legal in the majority of states. That technicality is a perversion: the law is designed to satisfy the "right" yet severely discourage the exercise thereof. It's sorta like a poll tax & test: just answer these "simple" questions and pay this "small" fee and we'll let you vote...gosh, amazing how many people suddenly don't want to exercise their right to vote, I wonder why...

53 posted on 05/14/2002 7:36:59 AM PDT by ctdonath2
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To: Dan from Michigan;The KG9 Kid;section9;the ;big ern;William Terrell;glc1173@aol.com;SJackson...

No. 01-8272


IN THE SUPREME COURT OF THE UNITED STATES

JOHN LEE HANEY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

 

THEODORE B. OLSON
Solicitor General
Counsel of Record

MICHAEL CHERTOFF
Assistant Attorney General

JOHN F. DE PUE
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


QUESTION PRESENTED

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

(I)

IN THE SUPREME COURT OF THE UNITED STATES

No. 01-8272

JOHN LEE HANEY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

    The opinion of the court of appeals (Pet. App. 1-21) is reported at 264 F. 3d 1161.

JURISDICTION

        The judgment of the court of appeals was entered on August 29, 2001. A petition for rehearing was denied on October 30, 2001. The petition for a writ of certiorari was filed on January 28, 2002. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

        Following a jury trial in the United States District Court for the Western District of Oklahoma, petitioner was convicted of unlawful possession of a machinegun, in violation of 18 U.S.C. 922(o). He was sentenced to 33 months’ imprisonment, to be followed by three years of supervised release. The court of appeals affirmed. Pet. App. 1-21.

        1. On August 25, 1999, petitioner appeared at a police station and informed the officer on duty that he owned semiautomatic and fully automatic firearms. Petitioner stated that the firearms were not licensed and that the federal government lacked authority to require him to obtain a license.  Law enforcement officials subsequently found two fully automatic weapons in petitioner’s car and house, along with literature describing how to convert a semiautomatic firearm to an automatic weapon. Petitioner admitted possession of the guns.  Pet. App. 2.

        Petitioner was indicted for possessing two machineguns, in violation of 18 U.S.C. 922(o). Pet. App. 3. Section 922(o) provides, with exceptions not applicable here, that "it shall be unlawful for any person to transfer or possess a machinegun."  18 U.S.C. 922(o)(1). A person who "knowingly violates" Section 922(o) is subject to a term of imprisonment of not more than ten years. 18 U.S.C. 924(a)(2). After a jury trial, petitioner was found guilty and was sentenced to 33 months’ imprisonment. Pet. App. 3.

        2. The court of appeals affirmed. Pet. App. 1-21. The court rejected petitioner’s contention that, by banning the possession of machineguns, Section 922(o) infringes his right to keep and bear arms and therefore violates the Second Amendment.  Pet. App. 4-9. Relying on its prior decision in United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), the court stated that the purpose of the Second Amendment is "to preserve the effectiveness and to assure the continuation of the state militia." Pet. App. 5 (quoting Oakes, 564 F.2d at 387). On that basis the court held 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." Id. at 6.

        Applying that test, the court of appeals held that application of Section 922(o) to petitioner’s conduct did not violate his rights under the Second Amendment. The court found it "clear that § 922(o) is facially constitutional" because "Section 922(o)(2)(A) sets forth a specific exemption for possession of a machinegun ‘under the authority of’ a state."  Pet. App. 7. It also noted that petitioner had failed to establish either that he was a member of a state militia or that machineguns are used in militia service. Ibid. The court concluded that, as applied to petitioner, Section 922(o) "does not impair the state’s ability to maintain a well- regulated militia and therefore does not violate the Second Amendment."  Ibid.1

ARGUMENT

        Petitioner contends (Pet. 11-15) that Section 922 (o) violates his right under the Second Amendment "to keep and bear Arms." He relies on United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), pet. for cert. pending, No. 01-8780 (filed Feb. 28, 2002), in which the Fifth Circuit held that the Second Amendment guarantees an individual right to possess firearms.  Petitioner’s constitutional challenge to Section 922(o) lacks merit and does not warrant this Court’s review.

        Like the Tenth Circuit in this case, other courts of appeals have rejected Second Amendment challenges to various provisions of 18 U.S.C. 922 on the ground that the Amendment protects the possession of firearms only in connection with state militia activity. See, e.g., United States v. Napier, 233 F.3d 394, 402- 404 (6th Cir. 2000); United States v. Hancock, 231 F.3d 557, 565- 566 (9th Cir. 2000), cert. denied, 532 U.S. 989 (2001); Gillespie v. City of Indianapolis, 185 F.3d 693, 710-711 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000); United States v. Wright, 117 F.3d 1265, 1271 (11th Cir. 1997); United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996); United States v. Hale, 978 F.2d 1016, 1018-1020 (8th Cir. 1992). The court of appeals in Emerson, however, rejected the analytic approach employed in those decisions. The Fifth Circuit stated that the Second Amendment "protects the rights of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons." 270 F.3d at 260.

        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.2  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.

CONCLUSION

        The petition for a writ of certiorari should be denied.

        Respectfully submitted.

THEODORE B. OLSON
Solicitor General

MICHAEL CHERTOFF
Assistant Attorney General

JOHN F. DE PUE
Attorney

MAY 2002


1 The court of appeals also rejected petitioner’s claim that, because Section 922(o) contains no jurisdictional element such as a requirement that the possession of a machinegun be in or affecting interstate commerce, the statute exceeds the authority of Congress under the Commerce Clause. Pet. App. 9- 20. The court explained, inter alia, that the regulation of intrastate activities involving automatic weapons that fall within the ambit of the statute is an essential part of a federal scheme to regulate interstate commerce in dangerous firearms. Id. at 15-19. Petitioner does not press his Commerce Clause challenge in this Court.

2 In its brief to the court of appeals in this case, the government argued that the Second Amendment protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of the militia. See Gov’t C.A. Br. 6-8. The current position of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse. See Memorandum From the Attorney General To All United States Attorneys, Re: United States v. Emerson, Nov. 9, 2001. A copy of that memorandum is appended to this brief.

54 posted on 05/16/2002 5:39:15 PM PDT by Mini-14
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To: ctdonath2
Haney was not convicted of Violating the '34 NFA act but the '86 Complete Ban on Machine Guns. The NFA act allowed the manufacture of machine guns by individuals for $200. The '86 prohibition bans any manufacture of machine guns after '86.
55 posted on 05/16/2002 7:17:15 PM PDT by SCR
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To: Sandy
Out of curosity, from your post 49, I cannot figure out how m-16s are manufactured then sold to the US govt.

How could these new guns be legally possesed by the manufacturer?

Regards,

56 posted on 05/30/2002 9:26:50 AM PDT by Triple
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To: Triple
922(o) "does not apply with respect to...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."

The phrase in bold is the loophole, I guess. Whoever jumps through the right hoops is exempt, apparently.
Here's the regulations (see section 179.105).

57 posted on 05/30/2002 1:35:06 PM PDT by Sandy
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To: Sandy
Hmmm...

Under the authority of the United States...

Don't citizens have the right to bear arms under the authority of United States as this right is explicitly recognized in the amendments to the US Constitution?
.<./Rhetoric.>.

Thank you for your response.

Regards,

58 posted on 06/05/2002 8:06:02 AM PDT by Triple
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