Ashcroft and Emerson

B

Bartholomew Roberts

Moderator
I noted that one of the questions posed during Ashcroft's confirmation was whether he would continue to push the government's side in the Emerson case.

I forget which anti-rights Senator asked him that little gem; but I found myself agreeing wholeheartedly with the Senator in the wish that Ashcroft keeps fighting Emerson if he is appointed AG.

Can anybody imagine how disappointing it would be if Emerson wins appeal in the 5th Circuit and is getting ready to go to the full 5th Circuit court when the AG drops the case? On the other hand, I'd hate to be the government lawyer prosecuting the case and reporting to my AG who sits on the NRA Board of Directors...

Personally, this is a case I would like to see up before the Supreme Court if only to see a revisit of the notoriously goofy Miller ruling.
 
I'm beginning to wonder if the 5th Circuit Court of Appeals is out there in the ozone, trapped in some time warp ...

What is going on with those folks? It's the end of January 2001 for heaven's sake. We were hoping for helpful precedent in this century ... ;)

Regards from AZ
 
The 5th doesn't know what to do.

I'm pulling this out of my... hat, so if it's wrong, I'm sure someone will let me know. IMHO, YMMV, WHS ("what's he smoking?"), etc.

I don't think the 5th can rule on grounds other than the 2nd, since Judge Cummings put so much emphasis on individual vs. state RKBA in his decision, and because DOJ's lawyer (Mateja?) pressed the issue so hard before the 5th. However, the 5th doesn't want to rule either way on purely 2nd grounds.

If the 5th upholds judge Cummings' decision (sides w/Emerson), that will create a disparity between courts of appeal (5th: individual right, 9th: no individual right). In that case, the Supremes will have to make a decision (to my knowledge, this situation is one of those 3 or 4 "have to take the case" circumstances). For this reason, I think they would be obligated to rule whether DOJ appeals it or not.

Now, the Supremes have a history of not going against precedent, even when precedent is wrong. They would be in a terrible dilemma: go with precedent (uphold gun control), which would be the death knell for RKBA, and would also go against the conservative majority's (supposed) opinion; or, go against precedent, rule in favor of RKBA, and open the floodgates. That's great for us, but a for "conservative" (meaning keep things the way they are) court, it's almost unthinkable. It wouldn't have been so bad in the 40s or 50s, but now, after 70 years of gun control... So the 5th wants to spare the Supremes the decision.

Maybe the 5th will rule against Emerson. Of course, that would be another nail (maybe the worst) in RKBA's coffin. However, if the 5th were anti, like the 9th, it seems to me they wouldn't have been able to wait to make their ruling; the fact that they haven't ruled makes me think they're pro, and they're considering the consequences I mentioned. I only hope they have the courage not to rule against Emerson just so the Supremes don't have to make the decision. That would be worse than treason, IMO.

The other possibility is the 5th is trying to find some non-2nd grounds on which to rule. I'm cautiously optimistic here, too: the fact that it's taking so long may mean they're having trouble finding such grounds. Repeat my comment about having the courage to decide.
 
If this does end up with the SCOTUS, I think their ruling will be something of a hybrid, not a cut-and-dried "there is an absolute RKBA" or "there is no RKBA."

They seem to have a history of placing "qualifiers" on the Bill of Rights, particularly the 4th Amendment. It's ok to stop and search cars even if there is no probable cause, if certain conditions are met, for example. If they rule that the 2nd Amendment does guarantee an individual RKBA, I predict that it will come with very broad "except in the case of" type provisions.

Now of course the SCOTUS has no constitutional authority to place such qualifiers on any of the 10 amendments that make of the Bill of Rights, but I think they will anyway.
 
There is a non-2nd argument to uphold Emerson. Emerson was never informed of the weapon prohibition by anyone and had no opportunity to contest it in court. The 5th could uphold Cummings argument on that alone without ever addressing the 2A arguments. However, I think Mateja stepped in it by claiming no individual right during the orals. I think the judges are going to address 2A issues. I guess we will have to wait and see <sigh>.

USP45: Ashcroft stated that he would continue to prosecute the government's case in Emerson.
 
I'm of the opnion of hoping Ashcroft pushes the Emerson case (hoping for a 5th ruling in favor of RKBA). If the 5th does rule on 2nd Grounds the correct way, I think Ashcroft should keep the same lawyer.

That lawyer was so far out of it that he wouldn't even say a National Guard member was afforded protection under the 2nd.

The 5th can get out of this on 10th Amendment grounds and has recent SC case history on it's side; however, Cummings made a very in depth and lengthy argument. Hard to ignore.

If it goes to SC, I predict they will not make the 2nd a hard and fast individual right. I think they will say the 'weapon' must contribute to a militia. Kind of incorporating Miller. Of course this will open up all Federal gun laws, as most should be, to consitutionaly concerns.

I too wonder where the ruling is........
 
Surely y'all didn't want to see a ruling under a Clinton controlled executive branch did ya? I know I didn't. I'm happy they've held it so long, and wish for them to hold it a little longer until we have one more SC justice in our favor. Bush isn't all that impressive to me, but his nominees are more impressive than any president in my lifetime. I'd like to see what types of people he'll nominate to the SC.

Miller V US clearly states that I have a right to an AR 15 or even an M16 because it IS a militia weapon. Heck, I bet I could even justify my 870 express, and my M700 with Miller. The Army has and issues all of these weapons in the calibers in which I have them (except the m16 which I can't afford due to the '34 NFA).

Digging even deeper, I can justify that a tax placed on my weapons is Unconstitutional by referring to Marbury V Madison ("The power to tax is the power to destroy"). If they want to tax guns that are clearly not a militia weapon, fine by me if they can find one. While a sawed off shotgun may or may not have been a military weapon, the military had tens of thousands of shotguns in their inventory. I simply don't know if any of them were modified to a short barreled variety for clearing trenches in WWI. Even if they didn't, I believe the military could have used a short-barreled shotgun, thereby making it a militia weapon.

The problem with Miller was the ignorance of the Justices who heard the case. Nowdays there is a lot more scholarly work done in the RKBA's. Justices also probably know that the Roosevelt Supreme Court was a rubber-stamp court for the New Deal after Roosevelts "Court-packing" scheme. It wouldn't take a genius to figure out that they never once seemed to rock the boat after that episode. Miller was half-correct. Now we need the SC to fix the half that wasn't.

Regardless. I want to see Emerson hit the SC in about 2 more years.
 
The 5th circuit court has been sitting on this case for a long time if they are not going to make an important 2nd amendment decision.

Remember, this is the court that sent the Lopez case to the Supreme Court.

A lot of people seem to not understand how the Supreme Court will handle this case if they get it.

The beauty of the Emerson case is that it is narrowly focused. The only issue is whether or not an individual has a Second Amendment right to arms. There are no conflicting issues, such as Emerson being a felon, etc.

The Supreme Court almost never makes broad, sweeping constructions. For one thing, its much easier and more efficient to decide what the law means in the case of the specific circumstance in front of them, rather than the infinity of possible complications.

Lets all remember that no right is absolute! The most ardent of us would not argue that the Second Amendment (for example) guarantees the right to take a weapon into the public library and wave it around in a menacing manner. Or, that people in jail have a right to "keep and bear arms". There are even significant limitations on freedom of speech and religion (you can't threaten violence or make human sacrifices).

All that we need is for the Supreme Court to decide in a definitive manner that the Second Amendment guarantees an individual right. Then the courts can start the business of overturning a lot of bad precedents and get on with the business of deciding what the "right" means in different circumstances. This will take decades.
 
Re the length of time 5th circuit takes on Emerson, they can take forever, if they so choose. Nothing, so far as I know, dictates any specific period of time for the issuance of a ruling. Also, the court is not compelled to issue any ruling, though the fact that they heard a case tends to indicate their willingness to rule on the issues presented.

The passage of time is curious however. All we can do it wait.
 
I really want to hear Ashcroft's oral argument before the Supreme Court for gun control. "The government, believing it is for the children, supports taking all guns away from all people, including National Guardsmen and police officers, and rests its case." I bet the antis would be VERY unhappy when they got exactly what they asked for (Ashcroft's defense of gun control).

BTW: There is no SC precident for gun control, just US v. Miller, when they questioned the milita's use of a SBS. Currently, the Army has a good collection of SBS for breeching doors and other obstacles. I think that would satisfy the Justices who ruled on US v. Miller.

Kharn
 
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