EMERSON & THE SECOND AMENDMENT

Quite a number of us have been following the U.S. v. Emerson case pertaining to the Second Amendment. Therein, the federal trial court judge wrote one of the finest decisions ever to come out of a federal criminal court -- which tracked perfectly with the original intent of all of the Founding Fathers when they approved the Constitution and later the Bill of Rights.

Alas, although the Fifth Circuit Court of Appeals agreed with the lower court that the Second Amendment protects an individual right of the people to keep and bear arms, they reversed that part of the lower court's decision which benefited Emerson.(1) So, Emerson appealed to the U.S. Supreme Court. The Supreme Court is now considering if it will hear the case.

Lawyers speak to the Court through their briefs and last May 6 was the deadline for filing them. In a nutshell, attorneys for Emerson are petitioning the Court to hear the case. Attorneys representing the federal government do not want the Court to hear it.

Last year, in a letter to National Rifle Association, Attorney General John Ashcroft said that the Second Amendment confers the right to "keep and bear arms" to private citizens, and not just to the "well-regulated militia" mentioned in the Amendment's preamble. "While some have argued that the Second Amendment guarantees only a 'collective' right of the states to maintain militias, I believe the amendment's plain meaning and original intent prove otherwise," Ashcroft wrote.

It would be kind of hard to support our Constitution and the intent of the Founding Fathers without agreeing with that. So, Ashcroft's letter got a lot of hopes up around the country. But "saying" it and actually enforcing it are two different things. So, we waited. Meanwhile, people were still being arrested around the country for unconstitutional and archaic gun laws.

Finally, last week, the Attorney General, via two U.S. Supreme Court briefs filed by Solicitor General Theodore B. Olson, tied actions to his words. Sort of, anyway.

As Linda Greenhouse reported in The New York Times May 7: "The Justice Department, reversing decades of official government policy on the meaning of the Second Amendment, told the Supreme Court for the first time late Monday that the Constitution 'broadly protects the rights of individuals' to own firearms.

"The position, expressed in a footnote in each of two briefs filed by Solicitor General Theodore B. Olson, incorporated the view that Attorney General John Ashcroft expressed a year ago in a letter to the National Rifle Association. Mr. Ashcroft said that in contrast to the view that the amendment protected only a collective right of the states to organize and maintain militias, he 'unequivocally' believed that 'the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.'"

Linda Greenhouse was exactly correct. That is what was filed in both Emerson and another case. Unfortunately, "unequivocally" is not exactly what Ashcroft or Olsen intended. Unequivocal would mean that they support the words "shall not be infringed" in the Second Amendment with "no doubt or misunderstanding" and the meaning is "clear and unambiguous."

The words "shall not be infringed" are unequivocal to many of us. "Shall not" is rather clear and needs no explanation to anyone outside of a government office. However, public officials want tight control over the people. Therefore, the Justice Department does not think of our right to keep and bear arms as a "right." Rather, to them it is an inconvenient "privilege" that must be strictly regulated by capricious bureaucrats.

Justice does not want Emerson to be heard by the Supreme Court simply because they know the Court is going to take a very dim view of many gun laws and may wipe our hundreds in one opinion. One only need read Justice Thomas's opinion concurring with the majority in the 1995 U.S. v. Lopez(2) case for a hint. We are sure the Justice Department knows Lopez quite well. Congress tried to regulate guns via the Commerce Clause. But, the Supreme Court did not buy it.

Justice Thomas wrote: "While the principal dissent concedes that there are limits to federal power, the sweeping nature of our current test enables the dissent to argue that Congress can regulate gun possession. But it seems to me that the power to regulate 'commerce' can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce. Any interpretation of the Commerce Clause that even suggests that Congress could regulate such matters is in need of reexamination."

With that in mind, let's examine some of the Solicitor General's argument filed in Emerson:

"In its brief to the court of appeals, 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. 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."

That's ten steps in the correct direction, to be sure. But, it most certainly is not "unequivocal" support of the Second Amendment. The Amendment clearly says "shall not." That is greatly different than restricting "possession of types of firearms" as the government wants to continue.

So, saying that the Emerson Appeals Court decision reflected the kind of narrowly tailored restrictions by which that right could reasonably be limited, the Solicitor General requested the Supreme Court to turn down the appeal.

If the government keeps control over our "right" to keep and bear arms, that right, then, becomes degraded to but a privilege.

It was the intent of the Founding Fathers that the American people shall have the unequivocal right to keep and bear arms and that government "shall not" interfere with that right. That intent was for personal arms one may "bear." Not cannon, howitzers, Apache helicopters, or tanks. Small arms only. Therefore, for small arms made to carry, there should be no restriction by government whatsoever.

To do otherwise is to violate the Constitution, as written. Because, restrictions would violate what Ashcroft called "the amendment's plain meaning and original intent" of the Founding Fathers. What the words "shall not" mean is that the right to keep and bear arms is an absolute right that government may not violate for any reason. As inconvenient as that may seem to our socialist tainted minds nowadays, that was the intent.

The Justice Department wants to have it both ways. That is why we expect the Supreme Court to seriously consider hearing Emerson -- and we hope they do.

Unfortunately, Roscoe was correct. Originally, the Bill of Rights applied to the federal government only. All the States had their own Bill of Rights.

Later, things changed. The 14th Amendment was passed and a whole slew of Supreme Court cases began to impose the federal Bill of Rights on the States. The last memorable such case was Roe v. Wade where the 9th Amendment's right to privacy became enforceable in all States equally.

We will not argue that here but, suffice to say, the Federal Bill of Rights now apply within all States equally.

We can assume the Second Amendment part to be true just by the attitude taken by the Attorney General in this matter. Why in the world would he even speak on the matter if his rules only applied on federal lands? That would be a complete waste of time on his part. No, there's more to this than just that. A LOT more!

If I wished to do a few hours research, I could probably make a good argument for both sides of this matter. However, based on many Supreme Court cases (Lopez and Printz are the latest) that included firearms in one aspect or another, it becomes obvious that the Court realizes that the Second Amendment applies equally in all areas of the country.

Or, if they do not, they are going to have to do some damn fancy writing to work around past decisions.

Personally, I think that if this Court (in its present configuration) does hear Emerson, Justice Thomas will be charged with writing the 5-4 majority opinion. His excellent concurring opinions in the Tenth Amendment, Commerce and gun rights cases are already historic and leave little doubt what the outcome will be.

Which means, to keep a majority, we will probably not get everything we want. But, the right to keep and bear arms will be enforced equally throughout the nation for all law abiding citizens. Problem is, there is no telling what Congress will do about limiting that "right" afterwards.

So John Adams wanted us to be armed as individuals for self defense but not to form our own militias. That is easy to understand.

If you're looking for another source to back up your assertion that the states can regulate firearms as per their constitutions check with Don Kates via his website. He is a pre-eminent 2nd ammendment lawyer and a criminologist and he agrees with you. I don't agree with him because the Bill of Rights lists natural rights of the people (10th includes states as well as individuals) that are guaranteed to everyone. I think (last time I checked) everyone includes all the people in all the states. As an example, I don't think the states can pass a law that abridges or violates the 1st ammendment inre. the freedom of speech as per the 14th ammendment.

I can disagree with you without calling you names though.LOL

I believe that once the SCOTUS rules in favor of Emerson's view of the 2nd ammendment, or even a broader interpretation of individual rights our side can then use the Equal Protection clause to keep the states from starting to walk all over gun owners.

This is from Don Kates' website donkates.com I normally begin presentations like this with two points, one of which is denounced by the NRA, the other by Handgun Control. The first point is that the Second Amendment permits many kinds of gun control, including some that as a criminologist I think are useless. I spent 20+ pages of an article in the MICHIGAN LAW REVIEW on this point[1], which the NRA has described as "Orwellian Newspeak."[2] (I am not going to further discuss it today, except to admit that there are highly credible constitutional scholars who think I overstate how much gun control the Amendment allows.[3])

My second point is that what the Amendment does guarantee is the right of every law abiding, responsible adult to possess arms. Now you are doubtless familiar with claims that the Amendment does not guarantee individuals anything, but only guarantees states the right to have armed militias. Such claims are not just wrong; they are so patently wrong that they would not be publishable except that they support results many very influential people want, regardless of truth. One proof of this is to just look at the authors. Without exception, every published opponent of the individual right view is an anti-gun advocate, most of them being employed by anti-gun groups. In contrast, many of the scholars who accept the individual right position do so solely because it is historically correct even though they themselves have never owned a gun, don't like guns and would prefer a disarmed society.[4]

We still have some right to bear automatic weapons. Federal law permits ownership of fully automatic weapons and silencers if you pay a 200 dollar tax and don't live in one of the 15 states or so that prohibit such ownership. Unfortunately, no new machine guns can be sold to civilians, no thanks to Ronald Reagan who signed the act in 1986 prohibiting transfer of newly manufactured machine guns to civilians.

Suppressors are no problem...in fact, if liberals were as concerned about the health effects of gun ownership as they purport to be, they would make suppressors widely available to cut down on noise, just as is the case in some countries in Europe.

The National Firearms Act was passed in 1938. My understanding is that the meaning of the Second Amendment was quite clear to the Federal government and that Congress recognized it could not ban automatic weapons. So it just put a tax on their ownership which, thankfully, has not been increased since then. Of course, the price of machine guns has skyrocketed since the pool of available weapons is relatively fixed. I say relatively, because every so often a few new machine guns enter the market...Vector Arms in Utah is selling newly manufactured UZI subguns, because they bought several thousand blank pieces of sheet metal which were registered as machine gun receivers before 1986, and they have finished milling them and building new guns.

Thanks for your clarifications. -- As you can see, roscoe is adamant on his position. -- Your initial comment said:

"Unfortunately, Roscoe was correct. Originally, the Bill of Rights applied to the federal government only. All the States had their own Bill of Rights.
Later, things changed. The 14th Amendment was passed" ---

'WAS correct' must be emphasized. -- Roscoe & I, and other 'states rights' advocates here at FR have been going round for years now on the legitimacy of the 14th, which to my mind tells states they MUST comply with constitutional basics.

As you infer, this view is NOT supported by any current powers that be. Thus, their fight to keep Emerson out of the USSC.

Regards.

I'm a sea lawyer not a real one so all of my expertise is in reading plain language and pretending lawyers do the same.

18 U.S.C. lists the reasons to deny someone the right to own a firearm and it was under that code that Emerson was busted.

Of course the appeals court ruling allowed that he had a right but was given due process (at his hearing for the restraining order) before losing his right. His attorneys were trying to make the case, I believe, that even though he had a hearing a one size fits all restraining order, that doesn't address the issue of gun rights, can't automatically cost one their gun rights.

One side door way for him to try and win his appeal would seem to be that he owned the weapon already and when he had the restraining order issued against him he was in immediate violation of the violence against women act because the law makes no provision for how to dispose of the firearm without breaking the law. How can you trasfer the firearm to another's possession without breaking the law?

That seems like a stretch and I'm sure hi-falutin judges have ways of ignoring stuff like that if they can't think of an easy solution.

It seems to me that if someone is going to have their constitutional right taken away, even if only temporarily, the hearing at which that right is lost should at least address it head on and not have that effect as a silent partner to the event.

--- the Court realizes that the Second Amendment applies equally in all areas of the country.

Or, if they do not, they are going to have to do some damn fancy writing to work around past decisions. Personally, I think that if this Court (in its present configuration) does hear Emerson, Justice Thomas will be charged with writing the 5-4 majority opinion. His excellent concurring opinions in the Tenth Amendment, Commerce and gun rights cases are already historic and leave little doubt what the outcome will be.

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I don't understand your problem with congress.
If the court writes a decision - [barring that 'fancy' language]-, affirming that the individual right cannot be infringed,--- how then can congress start limiting that right, - afterwards?

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