Emerson Case Update

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Schmit

Staff Alumnus
Was just fowarded this -

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Subject: Circuit Court Asks Great Questions


5:30 p.m. June 13 -- "The Court really beat up on the government" Linda Thomas of Houston ecstatically told me a few minutes ago.

She was on a cell phone, standing on the steps of Fifth Circuit Court of Appeals in New Orleans. A three-judge panel had just heard oral argument in the Emerson case, in which Lubbock, Texas, Federal Judge Sam Cummings struck down part of the 1996 Lautenberg Amendment prohibiting persons under a restraining order from possessing firearms.

The government prosecutor said the Second Amendment only applied to arms issued to militia members, in Dr. Timothy Emerson's case either the Texas National Guard or Texas State Guard. Judge
Harold R. DeMoss, Jr., a George Bush appointee, told him he was misreading the 1939 Miller case.

The court held in Miller that there had been no evidence that Miller's sawed-off shotgun was a militia-type arm. Nothing was said about the gun having to have been issued.

Judge DeMoss asked the prosecutor if Dr. Emerson's Beretta 92 9mm pistol isn't the type used by armies. Of course, it's the standard U.S. sidearm.

Judge DeMoss also raised a critical question that addresses the Tenth Amendment. "I have a 12 gauge and 16 gauge shotgun, and a .30 caliber deer rifle in my closet at home. Can you tell me how
those affect interstate commerce."

All Federal gun laws are based on the power of the Congress to regulate interstate commerce. The present Supreme Court has struck down several laws in a series of narrow decisions based on the
Tenth Amendment's stipulation that powers not specifically delegated to Congress "are reserved to the states and the people, respectively."

Judge Robert M. Parker, appointed by President Carter, and to the appellate court by President Clinton, told the government: "I don't want you to lose any sleep over this, but Judge Garwood (the
senior judge) and I between us have enough guns to start a revolution in most South American countries."

Linda, a gun rights activist who has just finished law school and is preparing for the bar exam, said the folks on our side of the aisle "are all smiles."

Unlike most firearms-related court cases, there was no reluctance to discuss the Second Amendment, and, Linda said, the judges had done their homework. "It was like sitting in on a Gun Rights Policy Conference legal seminar."

One thing about it, Timothy Emerson's case is going to have a full and fair hearing. And so will the Second Amendment.

If the Fifth Circuit concurs with the trial judge that the Second Amendment protects gun ownership as an individual right -- which now seems quite possible -- there would be a conflict between the circuit courts, almost guaranteeing a Supreme Court hearing after the next election.

That's just one more reason to make certain that Al Gore isn't in a position to appoint Supreme Court justices.[/quote]
 
I will keep my fingers crossed on this one.
Would that we had good laws from our legislatures and did not have to rely on the rulings of 3 judges.
Would that we had executives that did not argue for unconstitional and unjust policies.
 
Man that report made my day!!

This one was the best -

"I don't want you to lose any sleep over this, but Judge Garwood (the
senior judge) and I between us have enough guns to start a revolution in most South American countries."

BWWAAHAHAHAHAHA!! I love it.




------------------
Thane (NRA GOA JPFO SAF CAN)
MD C.A.N.OP
tbellomo@home.com
http://homes.acmecity.com/thematrix/digital/237/cansite/can.html
www.members.home.net/tbellomo/tbellomo/index.htm
"As nightfall does not come at once, neither does oppression.
In both instances there is a twilight when everything remains
seemingly unchanged. And it is in such twilight that we all
must be most aware of change in the air - however slight -
lest we become unwitting victims of the darkness."
--Supreme Court Justice William O. Douglas
 
Hey, what I can say... I'm all smiles... Thank you thank you thank you for posting an update so quickly.



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Richard

The debate is not about guns,
but rather who has the ultimate power to rule,
the People or Government.
RKBA!
 
Excellent...even the Clinton appointee zinged the government prosecutor.

If I read it right, all 3 judges "confessed" to being gun owners.
 
Somehow, I don't think the Supreme Court is going to let the status quo be changed.

If they rule in favor of the 2nd, they almost HAVE to roll back most gun laws, and they would not do that.

I think Emerson can put us on a little more solid ground, but it won't win the battle.

Actually, nothing will win the battle. Gun owners must be prepared to fight forever. Nothing can prevent the antis from continually attacking our rights. We could get every gun law over turned today, and they would just start in again. We must be resolute to stay in the battle for our entire lives and pass the baton to the next generation.

With Freedom comes the price of eternal vigilance.

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>"Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined." [/quote]

Patrick Henry, during Virginia's Convention to Ratify the Constitution (1788)


PaulB
NRA, GOA, LEAA, MDCL, C.A.N.
Fight 4 Your Rights Homepage
 
CassityGT beat me to it:

"I don't want you to lose any sleep over this, but Judge Garwood (the
senior judge) and I between us have enough guns to start a revolution in most South American countries."

BWAAAAAAHAHAHAHAHAHAHAH!!! :D

And a Carter appointee, at that! :)

[This message has been edited by Erik (edited June 14, 2000).]
 
Man, I don't know what happened. I looked all over the news last night for information about this and didn't see a thing. I figured that a case involving firearms rights and the potential impact on gun control measures that are reported on almost daily in the media, would have received extensive coverage by them especially since guns play so predominately in their broadcasts. Gee, what do you suppose happened? If the case was going the other way do you think that they might have reported a significant legal blow to the NRA as a lead story? If this continues as it looks I am REALLY going to enjoy this.
 
I haven't been able to find any evidence on the net that ANYBODY in the "mainstream" media are covering this story at all. We might even want to ask Ms. Thomas whether there were actually any reporters attending the hearing.

My cynical assumption is that we're not going to hear anything about this case in the media unless it goes against us.

------------------
Sic semper tyrannis!
 
Schmit, I know you didn't mean to do wrong but, this report came from a report by Linda Thomas, with most of the writing by Neal Knox. It would have been far more proper to quote this thing WITH all of the source attribution attached.

Compare the difference between your version and mine of the same post:
http://www.thefiringline.com:8080/forums/showthread.php?threadid=27384

You seem to have deliberately stripped out the author's name, right in the first line. That's not right.

Jim
 
One thing: if you recieved it hacked up like this, my apologies, but go point your source to this thread. Whoever did this chop job, it wasn't right.

Jim
 
Last night I spent an hour searching for this small snipit of information. It seems the major news services don't seem to think this is news. Today I coiped it from the other board it was posted to. Looked around today and found nothing at all mentioning this case. Likely to be the signicant civil rights case of the decade.

Anyone who believes in the Constititution and the 2nd Amendment sure thinks it is important.
Notice the statement by the government attorney concerning who can own a firearm. Ken.

Source

Gun-control advocates and opponents argue over judge's ruling

By CAIN BURDEAU
The Associated Press
6/13/00 6:41 PM


NEW ORLEANS (AP) -- A case argued Tuesday before a federal appeals court could determine whether the right to bear arms applies to individuals and not just the "well-regulated militia" referred to in the Second Amendment.

Last year, U.S. District Sam Cummings in Lubbock, Texas, struck down a Texas gun ownership law that barred Timothy Joe Emerson from gun ownership because he was under a domestic violence restraining order in a divorce case.

The case was before a three-judge panel of the 5th U.S. Circuit Court of Appeals and is likely to wind up before the Supreme Court. It is being watched closely by the National Rifle Association, gun control and law enforcement groups.

Cummings ruled that the Second Amendment protects the right to bear arms for individuals and not only for organized militia groups.

On the side of the Texas law were attorneys for the state and for the U.S. Justice Department.

"Is it your position that someone who is not a member of the National Guard or state guard does not have a right to protection under the Second Amendment?" Judge Will Garwood asked U.S. Assistant Attorney William Mateja.

Mateja said that was the case.

Lawyers for Emerson said that federal and state law hold that anyone subject to military duty, essentially any able-bodied adult, is part of a nation's militia.

Therefore, Emerson had a right to possess a gun, said Timothy Crooks, a defense lawyer.

"So, you're saying that (Emerson) was a member of a militia, broadly defined," Judge Robert Parker said.

The judges took the arguments under consideration and did not say when they would rule.

Crooks said he hopes the 5th Circuit upholds Cummings and that the case ends with that, although he acknowledged that the Supreme Court may wind up with the issue.

"The Supreme Court has not really reviewed these issues," John DePue, a Justice Department lawyer, said.

In one Second Amendment ruling in 1939, the court ruled that sawed-off shotguns could be regulated, Mateja said.



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Edited to fix formatting problem - TBM

[This message has been edited by TheBluesMan (edited June 15, 2000).]
 
Don't be too optimistic.
Judges often ask harder questions of the side they favor to help them with their opinion and so no one can say they were predjuidiced.
 
Truth Squad - http://www.guntalk.com

June 14, 2000

To Members of the Gun Talk Truth Squad

Howdy:

To those who are new to the Truth Squad, and there are many, let me say
"welcome," and I offer my thanks for your commitment to volunteer to send
letters to your local newspapers.

What follows isn't a sample letter, but it can be used as the basis for
writing your own letters.

Yesterday I flew to New Orleans to listen to arguments on the Emerson
Case. This is an important case for Second Amendment supporters. For a
complete background on Emerson, see the Second Amendment Foundation
website: http://www.saf.org/EmersonViewOptions.html.

Neal Knox sent out an alert about this immediately after the arguments
were heard, and while I agree with much of that report, Neal wasn't there.
Also, because Neal has been in this fight for a long time (as has Linda
Thomas, who gave him the report), I think they both might have glossed
over something that many gun owners would find amazing. By the way,
Neal's email reports are good information, and I suggest that you
subscribe to them. www.nealknox.com. He and I don't always agree, but if
you take his reports as a part of your research, I think you will find
them useful.

I sat next to Linda, which is interesting, in that our notes differ in a
couple of places. Such is reporting, I guess. Nothing big, but a few
details.

Here are the "Cliff Notes" on the case. Dr. Emerson was issued a
boilerplate restraining order in the middle of a divorce. There were 22
orders in the R.O., and three of them said, basically, that he had to stay
away from his wife. By federal law (since 1994), a person who is under a
restraining order, even if there is no evidence of a threat of violence,
may not own firearms. Yes, that's right. You lose a civil,
Constitutional right because a judge pushes a key on a computer and a
standard R.O. comes out.

The original decision by Judge Sam Cummings is a work of art, tracing the
history of government restriction of arms ownership (swords, armor,
firearms) back to England, before there was a United States of America.
You owe it to yourself to read this decision: http://www.saf.org/1999Emersoncase2amend.html.

Now, to the appeal in the Fifth Circuit in New Orleans, yesterday. First,
let me say that the lawyer (Crooks) representing Emerson was . . . how
shall I say this . . . not the best I've seen. However, the attorney from
the Alabama Attorney General's office (Cooper) was very good. The A.G.'s
office argued on Emerson's side.

The three-judge panel (Garwood, DeMoss, and Parker) asked tough questions,
and showed that they weren't buying the government's (federal government)
assertion that because a firearm once traveled across state lines, that
this gun was "involved in interstate commerce." This is important,
because if the firearm is not involved in interstate commerce, the federal
government has no place in this, and it is a state matter.

Note this exchange:

DeMoss: "I have a 16 gauge shotgun in my closet at home. I have a
20-gauge shotgun. I also have a 30-caliber rifle at home. Are you saying
these are "in or affecting interstate commerce?

Meteja (government lawyer): "Yes"

You'll note the personal tone to Judge DeMoss's question. This personal
tone carried throughout the one-hour session.

Veterans of Second Amendment battles understand that the U.S. government
takes the position that you do not have a right to own a gun. Many
people, however, say "Oh come on, you don't really believe that, do you?"

Well, here it is from the mouth of the lawyers representing the United
States government, from my notes at the Emerson case.

Judge Garwood: "You are saying that the Second Amendment is consistent
with a position that you can take guns away from the public? You can
restrict ownership of rifles, pistols and shotguns from all people? Is
that the position of the United States?"

Meteja (for the government: "Yes"

Judge Garwood was having none of that.

Garwood: "Is it the position of the United States that persons who are
not in the National Guard are afforded no protections under the Second
Amendment?"

Meteja: Exactly.

Meteja then said that even membership in the National Guard isn't enough
to protect the private ownership of a firearm. It wouldn't protect the
guns owned at the home of someone in the National Guard.

Garwood: Membership in the National Guard isn't enough? What else is
needed?

Meteja: The weapon in question must be used in the National Guard.

In other words, no one, even if a member of the National Guard, has a
right to own guns privately. That is the position of the U.S. government.

The judges seemed to reject the federalism position of the government
which says that once an item has moved across a state line, it is forever
covered by federal laws because it is involved in interstate commerce.
This rejection seems to be in line with several narrow decisions from the
Supreme Court in recent years.

The judges also appeared incredulous that the government was saying that
no one has a right to own guns, and that the Second Amendment guarantees
only the right of the National Guard to own guns.

It will be weeks or months before a decision is issued on this case, and
nothing is assured, by any means. However, if you need some hope, I leave
you with this final statement to government lawyer, made by Judge DeMoss.

"You shouldn't let it bother your sleep that Judge Garwood (the senior
judge) and I, between us, own enough guns to start a revolution in most
South American countries."

Now, what can you do with this information?

1. Write letters detailing the government's position that NO ONE has a
right to own a gun. Most people in this country believe that they do, in
fact, have the right to own a gun, and they need to know what the
government is saying.

2. Explain to your fellow gun owners how important this case is (see point
number 1 above), and that it is vital that Al Gore not be elected
president, where he can appoint Supreme Court justices. If the Emerson
case goes as I hope, it will be appealed to the Supreme Court. We don't
want Gore appointees sitting there when this case arrives.
 
This is getting better and better. I love how the judge just brought the whole issue into clarity with that exchange. It really made the Govt. look bad.

------------------
Thane (NRA GOA JPFO SAF CAN)
MD C.A.N.OP
tbellomo@home.com
http://homes.acmecity.com/thematrix/digital/237/cansite/can.html
www.members.home.net/tbellomo/tbellomo/index.htm
"As nightfall does not come at once, neither does oppression.
In both instances there is a twilight when everything remains
seemingly unchanged. And it is in such twilight that we all
must be most aware of change in the air - however slight -
lest we become unwitting victims of the darkness."
--Supreme Court Justice William O. Douglas
 
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