2nd Amendment Victory!

[Weapon X]

News Release
Second Amendment Foundation
12500 NE 10th Place
Bellevue, WA 98005
(425) 454-7012 * FAX (425) 451-3959 * www.saf.org


For Immediate Release: 10/16/01
Contact: Dave LaCourse (425) 454-7012


APPEALS COURT CONFIRMS THAT SECOND AMENDMENT PROTECTS AN INDIVIDUAL RIGHT

BELLEVUE, WA - In a stunning decision, the 5th Circuit Court of Appeals in New Orleans has crushed over 60 years of judicial misinterpretation and anti-gun rhetoric by finding that the Second Amendment of the U.S. Constitution protects an individual right.


While the court's decision in U.S. v Emerson was to reverse and remand a lower court ruling that cleared Dr. Timothy Joe Emerson of a federal violation of the 1994 Domestic Violence Act, the 5th Circuit clearly ruled that the Second Amendment guarantees the right of an individual citizen to keep and bear private arms, "regardless of whether the particular individual is then actually a member of the militia."

Writing for the majority, Judge William Garwood noted that the government's long-standing interpretation of the 1939 Miller case, that the Second Amendment merely expresses a "collective right" is not supported by the actual Miller decision. He further noted that, "we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment."

"This is truly a victory for firearms civil rights," said Dave LaCourse, public affairs director for the Second Amendment Foundation. "For years, gun control extremists and constitutional revisionists have insisted that there is no individual right to keep and bear arms. We now can say with the support of the federal court that we have been right, and they have been wrong, all along."

Acknowledging that in his dissent, Judge Robert M. Parker noted the Second Amendment right is "subject to reasonable regulation," LaCourse stated: "No right is absolute, not freedom of speech or the press. The Constitution does not protect slander or libel, nor does it guarantee an absolute right to practice a religion that might include human or animal sacrifice. What remains to be determined, and what we will have to continue fighting over, is the definition of 'reasonable regulation'."

LaCourse noted, as did the majority, that Dr. Emerson has been acquitted of all state charges relating to his case, which stems from a divorce proceeding. He was charged with violating 18 U.S.C. § 922(g)(8)(C)(ii) for having a firearm while under the conditions of a civil divorce court restraining order. District Judge Sam Cummings held that this law violated Emerson's Second Amendment right because he had not yet been convicted of any crime.

"Whether Dr. Emerson wins on the remand or appeals and carries his case ultimately to the U.S. Supreme Court," LaCourse said, "the fact remains that the Fifth Circuit has ruled that the Second Amendment, like all other amendments referring to 'the people' in our Bill of Rights, protects the right of an individual citizen, not the state. The court has smashed a cornerstone of the anti-gun house of cards."

The Second Amendment Foundation is the nation's oldest and largest tax-exempt education, research and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. SAF previously has funded successful firearms-related suits against the cities of Los Angeles, New Haven, CT, and San Francisco on behalf of American gun owners. Current projects include a damage action lawsuit against the cities suing gun makers, an amicus brief in support of the Emerson case holding that the Second Amendment is an individual right, a lawsuit against the Clinton gun and magazine ban and a lawsuit in Cincinnati supporting the right of self-defense carry of firearms. Please visit the best Emerson webpages at http://www.saf.org

-END-

 

[Weapon X]

Ping!

 

[Laserdude]

Right on! This case was total b.s. anyway you look at the anti stance.

The government would be best to steer clear of anymore attempts to short circuit the 2nd amendment, or be SUED.

Yes the government should be SUED all the time, just to keep them in their place. Officials are supposed to serve the people, not some cause for a small group of people who are seeking power for themselves.

After all if suing the government costs them money, it should be no big deal, they will just print more notes. The money is borrowed anyway, and in fact it is worth only what it cost to print the stuff anyway.

It cost .03 to print a $1.00 note or a $100.00 note. Notice I don't call them dollars because they are'nt.

Federal Reserve Note is what it really is. And a note is a bill to be paid, and in this case it will be paid over and over forever.

 

[Sushi X]

yes, a true victory for america. our freedom preserved from the left wing commies who want to eliminate guns and destroy the constitution. thank God for people out there with a sense of patriotism and values.

guns do not kill people, people kill people. cars do not kill people, people kill people. baseball bats do not kill people, people kill people. shall i go on or do the left wingers need it repeated for it to sink in.

remember when rosie went off on tom selek? that made me mad. she had no right to use her show as a soap box. she's criticized nbc for things and that is the network that airs her show. i would have cancelled it a long time ago for both accounts. i'm sure ryan would love to see rosie as secretary of the interior and that reno woman as vice president alongside that other commie rodham clinton who would destroy and rewrite the constitution and make this the united american socialist republic(U.A.S.R.).

 

[MP5]

Children's blood is on your hands now, enjoy!

 

[nitlyan]

I don't care what they rule! I know what is right. No law was going to stop me from owning guns of any type! When the shit hits the fan....I have a few key people in mind the squeeze the trigger on first. Yes, all three of them are radical liberals.

 

[Badkins21]

Disarming the people, and rendering them defenseless, has been the first step of almost EVERY tyrannical, totalitarian government on this planet: Soviet Russia, Facist Italy, Communist China, Nazi Germany, to name a few...

That's a good decision, although it should have been obvious from the start!

 

[chesty]

FUCKING YES, YES, AND FUCKING YES. WE ARE GETTING SOME RIGHTS BACK AND AMMUNITION TO FIGHT THE DUMBASS LIBERALS!

 

[1911]

Children's blood is on your hands now, enjoy!

Women and children first man! (now get the fuck off your liberal kick - heh heh)

Later,

 

[Gorlim]

try living in NYC if u think the gun laws where u live are bad..

 

[manny78]

I'm proud for you people I wish here we had the same rights.....

 

[The Dude]

Excellent. The Constitution and Bill of Rights is not meant to be interpreted. They were written as the framework for this nation and are meant to be upheld.

 

[musclebrains]

So sorry to burst your bubble, but I wouldn't rely on the gun lobby itself for my news. Shame on you, X, for not printing the WHOLE story


NEW ORLEANS, Louisiana (CNN) -- In a closely watched gun control case, a federal appeals court reversed a lower court Tuesday and upheld a law that prohibits possession of a firearm by someone under a domestic violence restraining order.

The victory for gun control advocates in the 5th U.S. Circuit Court of Appeals in New Orleans was tempered, however, by a 2-1 majority conclusion that the Second Amendment grants the right of individual citizens to buy and bear firearms.

That position, supported by the National Rifle Association, is bitterly opposed by gun control supporters who maintain that the Second Amendment grants only a collective right to bear arms by state militias, now organized as the National Guard.

The case in question -- U.S. v. Emerson -- had become the focus of wide attention when the Justice Department under Attorney General Janet Reno agreed to follow the Clinton administration's lead and continue to defend the gun prohibition against those under restraining orders.

A letter from current Attorney General John Ashcroft to the NRA expressing support for the view that individual citizens have a constitutionally protected right to bear arms reversed the Reno view and produced howls of protest from gun control groups.

In his May 17 letter to the NRA, Ashcroft said, "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."

"Let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protects the right of individuals to keep and bear firearms," his letter said.

Following Tuesday's ruling the Violence Policy Center, a gun control group, applauded the decision upholding the law.

"Today the 5th Circuit Court of Appeals rejected the sweeping arguments of the gun lobby that the Second Amendment guarantees domestic abusers an individual right to possess a gun," said Mathew Nosanchuk, the group's legislative counsel.

He downplayed the majority view of the individual right to bear arms as "an advisory opinion."

Timothy Joe Emerson, the defendant in the case, was arrested and charged with illegally purchasing and possessing guns after his estranged wife filed for divorce and was granted a restraining order. Emerson later displayed a pistol during an argument with his wife in the presence of their daughter.

A lower court judge in Texas agreed with Emerson's argument that the federal ban on gun possession for those under protective orders was an unconstitutional violation of the Second Amendment.

 

[Weapon X]

To the aptly-named musclebrains (who seems almost fixated on me and ever-ready to junp on my posts in a strange stalker-like way):

"The victory for gun control advocates in the 5th U.S. Circuit Court of Appeals in New Orleans was tempered, however, by a 2-1 majority conclusion that the Second Amendment grants the right of individual citizens to buy and bear firearms"

That is the victory.
I don't argue for convicetd murderers to be able to bear arms. I don't argue that persons against whom a restraining order has been granted should be able to own firearms.

The victory is that the 2nd Amendment has been confirmed as pertaining to the rights of the individual, not as a collective right.

 

[musclebrains]

Poor X, pursued by me. I assure you, this has nothing to do with you. Journalists tend to get annoyed with such conspicuously biased reporting. (But I expect you'll continue that thread in your usual spiteful way as an antidote to my observations in another thread.)

Anyway....

You didn't argue anything, actually. You just posted a highly-spinned piece from a gun lobby web site -- a report with a rather huge lacuna.

I agree that the conclusion in one respect is a setback for the gun control people, though there are plenty of other arguments for inhibiting the ownership of firearms. Moreover, it's a bit premature to call it a precedent.

The fact is that the decision empowers the authorities to deny gun ownership to people who have not been convicted of crimes.

 

[Weapon X]

But you see, mb, one who has a restraining order out on him HAS been proven guilty.
When a woman applies for a restraining order, she is awarded a temporary order only. The actual restraining order is only granted after a court hearing and decision by a judge.

 

[musclebrains]

OK, well, I'm happy to be corrected. Do you mean that a restraining order is only granted in the case of conviction for a crime?

 

[lex talionis]

Damn, it's nice to see that we have so many pro 2nd amendment people on the board.
Usually posts like this one bring out all of the anti-gun douchebags.

 

[RyanH]

The Fifth Circuit has a horrendus reputation in the legal community, as opposed to New York's Second Circuit, which enjoys a fine reputation.

That being said, the Second Circuit spoke, not the Supreme Court, thus its ruling does not have finality.

Ryan.

 

[spentagn]

Ryan, I'd be surprised if anyone would discredit a Fifth Circut court judge. And before you accuse me of talking out of my ass, I actually know one of the judges, a Democrat even. He's a good family friend, and a staunch supporter of Clinton.

 

[Weapon X]

OK, well, I'm happy to be corrected. Do you mean that a restraining order is only granted in the case of conviction for a crime?

Only insomuch as harrassment, abuse, death threats, and stalking a crimes. The restraining order itself is an indictment which has gone through the legal system.

If you stalk someone, abuse her, and threaten to kill her, you should perhaps not be able to own firearms.
Hell, if I had done what he did (also known as brandishing), the cops would take away my CPL also.

 

[dballer]

Excellent. The Constitution and Bill of Rights is not meant to be interpreted. They were written as the framework for this nation and are meant to be upheld.

I could not have said it better myself... I do not think George Washington could have either.

 

[chesty]

The court said that the 2nd amendment is an individual right. That means that when it goes to the supreme court (given the current judge layout, like it or not) they will almost surely hold this view as well and repeal a 100 years of liberal bullshit to communise the US.

Second, they said that being convicted of domestic violence does not infringe upon the 2nd amendment. While I disagree with that particular law in its current form.

The article did not state what their position was on restraining orders.

A restraining order is not a conviction of a crime. It is an order of the court telling an individual that they may not harass or come within a certain distance etc, of a particular person or persons.

Therefore, Emerson, should not have been charged with violation of the law because he was never convicted of domestic violence, he had a restraining order against him. Now, if the stipulations of the order included not being in possession of a firearm then that would be a different law that he should be charged with.

In short, the 2nd Amendment got a huge shot in the arm.

 

[litig8r]

The Fifth Circuit has a horrendus reputation in the legal community, as opposed to New York's Second Circuit, which enjoys a fine reputation.

That being said, the Second Circuit spoke, not the Supreme Court, thus its ruling does not have finality.

Ryan.

I guess that lil fact is based on your YEARS of experience in the legal community RyanH. Why don't you go back and compare how many times the USSCt has upheld the 5th Court over the last 20 years as opposed to the 2nd Court (or their leftwing cousins on the 11th). Only liberal misinterpretists like you believe the New York Circuit is worth a shit. In fact, I know I'm winning my case when the defense attorney resorts to citing 2nd and 11th Circuit Court cases. No REAL trial attorney takes them seriously.

Once again the 5th circuit leads the way in truly protecting the liberties of Americans.

hasta

litig8r

 

[TheYork]

TheYork thinks that giving out guns to the people of NYC should be a law. They should be allowed to hunt Arab... and Taxidermists should mount them for free.

 

[dballer]

TheYork thinks that giving out guns to the people of NYC should be a law. They should be allowed to hunt Arab... and Taxidermists should mount them for free.

I have not heard this one before. Good idea though. York, you may have problems here with a few people with those kinds of ideas. But I think they are A-OK. Just don;t say that to Omar, he may call you a racist.

 

[fiatconspiracy]

everyone should go out and buy a gun, fuck the liberals....

 

[Weapon X]

A restraining order is not a conviction of a crime. It is an order of the court telling an individual that they may not harass or come within a certain distance etc, of a particular person or persons.

I agree with you, chesty. BUT the Restraining Order is also a confirmation that the Court, after reviewing the case, believe that someone is a danger to the other person.
Isn't this the case?

I know that first the victim must file paperwork and is awarded a temporary order and must appear in Court with the accused to make a case and present evidence. The Court then makes a determination about issuing a long-term order.

 

[musclebrains]

the reporting on this is confusing.

The conclusion that X cites and I agree will most likely be upheld in the SC is one thing. I am not a lawyer so I don't know if what's being called an "advisory opinion" automatically establishes a precedent. Is this so?

But the main thrust of the case was to uphold a law that forbids ownership of a gun by someone under a restraining order for domestic violence. As Chesty notes, this doesn't necessarily mean there has been a conviction In fact, here is a summary of the case. There was no conviction of a crime prior to the arrest:

"Timothy Joe Emerson, a Texas resident, had been charged with violating 18 U.S.C.§ 922(g)(8), which prohibits possession of a firearm by persons under a domestic violence restraining order. Emerson's wife obtained such an order from a judge in 1998, after Emerson had acknowledged his mental instability. Two months later Emerson's wife and daughter went to his office, where Emerson pulled his Beretta pistol from his desk drawer during an argument. Emerson was subsequently indicted for illegally possessing two 9mm pistols, a semi-auto SKS assault rifle with bayonet, a semi-auto M-14 assault rifle, and an M1 carbine and tried in District Court. Emerson contended that his case should be dismissed on the grounds that the federal ban on gun possession by those under a protective order for domestic violence violated the Second Amendment. The district judge sided with Emerson and dismissed the charges. "

The court in its decision the other day reversed that decision. In short, a law forbidding ownership of a gun by someone other than a convicted criminal was upheld. In any case, the battle will continue in the Demo-controlled Congress over the firearms protection and safety bill.

 

[nycdefender]

Weapon X, you're overgeneralizations about restraining orders is incorrect. First, let's distinguish between temporary versus final orders of protection. A temporary order of protection does not require any due process--a mere accusatory instrument can result in a temporary order of protection being issued against you. For instance, I accuse you of punching me. At a criminal court arraignment--the district attorney's office would request that the judge issue an order of protection upon my behalf to keep you away from me. This would occur prior to any grand jury action or a preliminary hearing. A final order of protection, however, would occur after either a guilty plea or a guilty verdict.

Family court orders of protection are not much different than criminal court orders of protection.

So when you say that a restraining order is an indictment--you're just plain wrong. An indictment is an accusatory instrument filed by a grand jury which has determined that there is reasonable cause to believe that a particular defendant committed a felony. An indictment has absolutely nothing to do with an order of protection.

By the way, I'm one of the "liberals" that you bash--but I applaud this decision, since I, too, believe that bearing arms is a fundamental right. If the citizenry is armed, it's much more difficult for a country to become a police state or to be taken over by the military. In the future, then, I would appreciate it if the "conservatives" avoided the liberal-bashing when it comes to the right to bear arms.

 

[Weapon X]

Well, nycdefender, let's calm down a bit.
I believe that my error was that of using the word "indictment" in its colloquial sense rather than its legal sense.

 

[musclebrains]

By the way, I'm one of the "liberals" that you bash--but I applaud this decision, since I, too, believe that bearing arms is a fundamental right. If the citizenry is armed, it's much more difficult for a country to become a police state or to be taken over by the military. In the future, then, I would appreciate it if the "conservatives" avoided the liberal-bashing when it comes to the right to bear arms.

Can you elaborate? How does this work? Colin Powell is going to organize an insurrection and fat BAby Boomers in Denver are going to organize millenial minute men brigades, perhaps hiding out in Aspen chalets?

I read this argument all the time but I just can't quite grasp it in a time of biological warfare, nuclear weaponry, terrorism, missle tech, etc. How does it work, seriously?

 

[musclebrains]

Well, nycdefender, let's calm down a bit.
I believe that my error was that of using the word "indictment" in its colloquial sense rather than its legal sense.

Even still, an indictment is not a conviction in a colloquial sense either. Fact is, the decision upheld the right to forbid gun ownership even when a person has not been convicted of a crime. The NRA and friends were arguing that the right should not be withdrawn because he was under a restraining order.

The only crime reported (and I'm not saying the reporting is thorough) here was his possessing a gun contrary to the law. There is no reporting of the kind of abuse you cited, only the woman's fear and her ex's admission that he was mentally unstable.

 

[nycdefender]

Can you elaborate? How does this work? Colin Powell is going to organize an insurrection and fat BAby Boomers in Denver are going to organize millenial minute men brigades, perhaps hiding out in Aspen chalets?

I read this argument all the time but I just can't quite grasp it in a time of biological warfare, nuclear weaponry, terrorism, missle tech, etc. How does it work, seriously?

If a militia is trying to occupy an area--the militia is very unlikely to use biological, chemical, or nuclear warfare. NBC warfare tends to make an area inhospitable for human life. Granted it's all theory, but it's very difficult to occupy an area where the citizens can snipe at you from any window, door, etc. Imagine trying to occupy NYC, where millions of citizens are armed. You could line the streets with tanks and troops--but it's an impossible task for any military to clear out the residential buildings where there are armed citizens.

 

[litig8r]

Clarification of Texas law

There are two distinct types of family law orders in Texas. A Restraining Order and a Protective Order. Both may be obtained "Ex parte" (without a hearing) but only for 7 days.

A Temporary Restraining Order is put in place in virtually every Divorce case. It simply maintains the "status Quo" during the pendency of the divorce. It CAN not be enforced by law enforcement and does not prohibit one from possessing a firearm. It may only be enforced through contempt proceedings.

A "Protective Order" on the other hand may be issued by any magistrate upon a showing of family violence. There need not be any Divorce pending. A magistrate may only issue a "magistrates Protective Order" for 60 days after a hearing. This is to allow the victim time to file for a permanent protective Order in the appropriate Court. A "permanent" P.O. is actually only good for 1 year unless renewed. Under a PO, one may not posses a firearm. A PO is enforceable by law enforcement. For a PO to be issued (even temporary) there must be a hearing before a court Wherein the court must find by a preponderance of the evidence that family violence has occurred are is likely to occur. It is this type of scenario that the Emerson case arose from.

Therefore, one under a PO has had due process and, although not adjudicated guilty of any offense nor even indicted, has been found to have committed family violence.

By the way, I carry a Glock Mod. 27 .40 cal in court.


hasta

litig8r

 

[nitlyan]

I guess that lil fact is based on your YEARS of experience in the legal community RyanH. Why don't you go back and compare how many times the USSCt has upheld the 5th Court over the last 20 years as opposed to the 2nd Court (or their leftwing cousins on the 11th). Only liberal misinterpretists like you believe the New York Circuit is worth a shit. In fact, I know I'm winning my case when the defense attorney resorts to citing 2nd and 11th Circuit Court cases. No REAL trial attorney takes them seriously.

Once again the 5th circuit leads the way in truly protecting the liberties of Americans.

hasta

litig8r

Thank you litig8r! this cryanh guy is a fucking idiot. He posts shit like a true liberal would, knowing that 95% of the people reading it don't even know what a circuit court is and what it means. The 5th ct is one of the highest regarded courts in our land and you are right the new york 2nd is a joke....!!!HAHAHAHA cryanh, you have no credibility on this board!