More on US v. Emerson

F

Futo Inu

New member
I apologize if I've missed something on the subject, but I've been incredibly busy at work (yet don't want to miss this point before the case is heard by the 5th Cir).

As a lawyer and second am. advocate, I've studied the second a fair amount, but have not read the briefs, so someone please tell me the status of this particular issue, as it greatly concerns me.

Everyone on both sides knows the history and precedent shows that the second is and individual right, and Larry Tribe even says so now. However, the main problem my legal training sees is distinguishing this case from US vs. Miller. As we all know, in Miller, the defendant failed to show up for oral arguments at the Supremes. But what the Supremes actually said is all-important. In a nutshell, the Supremes said "If Mr. Miller WOULD HAVE SHOWN at trial that a saw-offed shotgun [or insert the firearm in question here] is USEFUL to a military or para-military group, then it is protected to individual ownership by the second." Since no such showing was made either at the original trial OR on remand, Mr. Miller's charged crime stood.

Here, I'm afraid the appellant/defendant Emerson and his lawyers may have missed a main point (not sure). We can argue all day long for pages on end about whether individual right or not, whether fundamental right or not, and all of these issues, if decided by honest judges, will favor Mr. Emerson. But it's all for naught if Mr. Emerson cannot distinguish Miller by having shown at trial that his gun was/is useful to a military organization, by testimony of experts in the military. If he did not, then he will need to argue on this appeal (and by he arguing, I also mean US arguing via amicus briefs - NRA or anyone else who wishes to file an amicus) either or both of these two things:

1. The appellate court can take judicial notice that a [handgun/shotgun/whatever he had] is useful to the military group - very weak argument.

2. If no showing was made either way, then Mr. Emerson needs to ask for a remand to give him an oppurtunity to do so, if he hasn't already - better chance than judicidial notice.

As for fundamental right, therefore Lautenberg's dom violence nonsense is violative because not a felony, etc., I'm sure they've got that base covered ad nauseum in the briefs, and the history and precedent clearly supports it, but I'm afraid we might win the theoritical argument, yet nevertheless have Mr. Emerson lose the result in the case for the exact same reason Mr. Miller lost in 1939. The the antis would parade their "victory", claiming "no individual right" for another 60 years. Anyone know the status of this issue in the trial/appellate briefs?
 
Futo: I suppose it's too much to ask the lower court to decide that US v. Miller is unfit as a precedent for deciding cases because of that lack of any representation for the defendant? And then go at the subject de novo?

Am I insane to suggest that we petition the Supreme court to instruct the lower court that Miller should not be seen as binding for that reason? Can it hurt to ask?

I realize that that would be a really unusual request, but there IS the manifest injustice of an entire area of constitutional law resting on a case of trial in abstentia, preventing all sorts of valid issues from ever being addressed just because the government didn't want to shoot itself in the foot by raising them itself.

[This message has been edited by Brett Bellmore (edited September 07, 1999).]
 
The gun in question was described as "a Beretta". My guess (can someone verify?) is that it's a Beretta 92FS, which was designed for the US military and is (last I heard) the primary sidearm. Short of an M16, that's about as "suitable for militia use" as you're gonna get.


Interesting that the Supreme Court case - that holds everything together for the Emerson prosecution - is based on a case where the defendant & counsel never appeared. Pretty tenuous to define a right's limits in a kangaroo court.

Also interesting that the anti's _never_ give a case showing what they consider "proper" exercise of the RKBA. Their argument is turning reducto ad absurdum to "it's impossible to exercise this right", which should tip someone off to a complete missing of a point.
 
Emerson was prohibited from owning any firearm, not a specific firearm. I don't think they have to show that his pistol has military/militia use.
 
Plus I think we ran this angle of the topic into the ground on a recent thread. I don't believe the 2nd applies a military usage when defining "arms". Plus, anything can become an instrument of war. If you walk down the path of defining military suitability, then you leave behind the issue of the 2nd.

The 2nd _affirms_ our _right_ to _keep and bear arms_. It does not assign a right, it affirms a right. It does not restrict "arms" to military suitability, it simply states "arms" with no refinement or requirements of definitions of what those "arms" are comprised of or defined as. To do so would be an _infringement_.

Now, normally I would go into nuclear mode, but I won't digress down that pathway.
 
Much of the house of cards is built on Miller, with most of the references mentioning "no military use" (either in item design or intent of posession) means no right. My point was that if the gun in question was military-designed, that would eliminate that loophole. _WE_ know that it's about arms in general, and any weapon is suitable for military use, but the judges need to be convinced of that, and having a military sidearm involved may help overcome that obstacle.

Of course there's the obstacle of "intent", as Emerson likely did not explicitly posess the gun with intent to use it for militia purposes.

Yes, those are all red herrings, but they've worked many times before and caused us much grief. The Emerson prosecution builds their case on it. Once the "active militia use ONLY" falacy is squished ("_not_ 'only'") or satisfied ("it's a military arm, and posessed by a legal member of the US militia"), then we can get on to smacking the right people upside the head with "_people_ means PEOPLE, i.e. CITIZENS, not abstract political entities!!!"

Gag, what a mess...when people deny the definitions of words, it's awfuly hard to argue sanely. "What part of 'shall not be infringed' don't you understand? What part of 'the right of the people' don't you understand?"

I'm glad the 5th circuit judge went to great lengths to point out the original intent. That should help immensely.
 
Here is an email exchange relevant to this, between myself and another TFL member.

To me from Alan:
> > So far as I know, and this might not answer your question, the feds, who
> > lost in district court, have appealed to 5th circut court, I guess that
> > is an appellate jurisdiction, located in New Orleans, where
> > comment/speculation indicates that something might start happening early
> > next year.
> >
> > Other than this, and I'm NOT an attorney, or especially learned in the
> > law, I wonder as to all the comment re this case and Miller v. U.S.,
> > circa 1939, which dealt with the claim (by Miller) that possession of a
> > sawed off (or was it merely a short barrelled shotgun) was protected by
> > The Second Amendment. The Court found that it wasn't, in that such
> > weapon was "did not contribute to the efficiency of the military", or
> > words to that effect. Of course, they did NOT look at the use by the
> > U.S. Army, of short barrelled "trench guns" in WW 1, as well as in the
> > intervening years, prior to 1939.
> >
> > Also, as I understand the case, The Court (Supreme Court) heard only the
> > governments arguments, it seemed that Mr. Miller had died, and one
> > cannot tell what arguments his counsel might have made, or what effect
> > such arguments might have had on the court, and it's findings in the
> > case.
> >
> > In Emerson, Judge Cummings found, again as I understand the thing, that
> > The Second amendment addressed "an individual right", and that what was
> > earlier known as The Lautenberg Amendment, which became part of the 1994
> > Crime Bill, so called, was itself unconstitutional. Emerson was charged
> > under Lzutenberg. Obviously, the feds are less than happy, both with
> > this decision., and with what it's ultimate ramifications, if it stands,
> > might be. Obviously, they could be quite far reaching, and or wide
> > ranging, or both.
> >
> > Hope that this helps, though since you are yourself an attorney, you
> > liklely know more about the technicalities than do I.

From me:
It would be fairly easy to demonstrate at trial that a short-barreled
> shotgun AND a Beretta pistol, and just about any type of firearm, would
> contribute to the efficiency of a military or militia group, if one simply
> tried. The problem is that (a) an appellate court such as the 5th Circuit
> Court of Appeals or the Supreme Court, cannot and does not take any new
> evidence or testimony - it can ONLY review the correctness of the trial
> court's decision on the record of what has already been presented, and (b)
> Mr. Miller in that case did not make the requisite showing, AND the case
> could not be remanded for such a showing either because he had died in the
> meantime, or since his lawyer didn't show at oral arguments and ASK for a
> remand, it wasn't granted - not sure which. It is extremely important to
> realize, to combat the antis, that the Court in Miller emphatically did NOT
> decide that a sawed-offed shotgun is not protected by the second, ONLY that
> Mr. Miller never introduced evidence showing its usefulness to a militia,
> and therefore that it is protected. Moreover, it is imperative to realize
> that while not the precise holding of Miller, the Court strongly implied and
> basically said in "obiter dicta" that if the shotgun WOULD HAVE BEEN SHOWN
> to have been useful to a military group, then the protection that would have
> been extended to Mr. Miller is an INDIVIDUAL right to all adults capable of
> acting in the militia. In other words, every adult capable of performing
> in the militia has an individual right to keep (own) and bear (use - train
> with, etc.) a small arm which is useful in any capacity to a militia or
> military group.
>
> An appellate court CAN remand the case for further
> hearings/testimony/proceedings, for further FACT-FINDING, if warranted.
> Certainly "Lautenberg" is vioative of the second, because it involves
> stripping a fundamental right for nothing more than a misdemeanor, or worse
> yet, a CIVIL domestic restraining order (no crime). This is what is
> essentially being appealed to the 5th Circuit. However, IF Mr. Emerson did
> NOT show at his trial that his Beretta is useful to the military, either by
> way of testimony or asking the TRIAL judge to to judicial notice that the M9
> has been adopted by the military by reference to an undisputable military
> manual showing the M9's adoption, and IF he fails to obtain a remand, then I can
> foresee the possibility that the 5th Circuit, and ultimately the Supremes,
> will say, in essence, that "yep, it's still individual, and it's still
> fundamental, as it's always been, but the defendant never PROVED that this
> weapon is in the class protected (useful to a militia/military group); and
> we as the appellate court legally cannot take judicial notice of any such
> thing even though everyone knows the M9 is the current service sidearm;
> therefore Mr. Emerson, you lose the RESULT in this case - in other words,
> the government's charge against you for possessing the firearm can stand." In other words, the court might refrain from ever answering the question of whether Lautenberg is unconstitutional because they could say that don't have to answer the question because the initial question of whether the particular WEAPON at issue is protected, is dispositive of the case. This would leave Mr. Emerson charged, yet never having decided the constitutional question - I would like to think that the appellate court would at the very least go ahead and decide the const. question, then remand for further findings by the district court as to whether this GUN is protected to the individual.

To me:
Once again, AS I UNDERSTAND, OR MISUNDERSTAND, as the case might be, this
Emerson matter, Emerson was charged with having in his possession, while under a
PFA order, a firearm or firearms. Possession, either singular or plural, as I
understand the thing, was "problematic", and such was the basis for the
indictment. I believe that Judge Cummings dismissed this indictment, as well as
ruling that there is an individual right to arms, which would have protected
Emerson's possession, in the given circumstances. Judge Cummings, again as I
understand the case, also ruled Lautenberg to be unconstitutional. Given the
foregoing, I personally cannot see what connection there is or might be, with
Miller, as I earlier stated, though I may well be concentrating on a mouse,
while missing an elephant.

One thing about Miller, as I recall from having read the record some years ago.
Justice McReynolds, as I recall had written to the effect that while a sawed-off
shotgun might not be necessary to the efficient functioning of a militia or the
military, that, respecting the militia, it would be reasonable to see the
militia in possession of weapons "similar in type to those in current military
service".

Today, that opinion would seem to support possession by "the militia", which is
"all the people", of the current service rifle, that being the M-16,
notwithstanding it's selective fire capability. That opinion would certainly
seem to knock into the proverbial cocked hat, the endless goings on over and or
about "the semi-automatic assault rifle", which is certainly "similar in type"
to the current service rifle.

From me:
As far as the "active militia" BS - the gov't is all wet about that - I consider that issue a slam dunk in Emerson's favor. First, there is a specific federal statute saying who is in the militia, and I think it's every adult aged 18-45; AND it's plainly obvious that state National Guard organiations are nothing more than arms of the feds - don't worry about that issue.
 
I think you are missing the point here in Emerson. The case never went to trial. So therefore I don't think any evidence was ever presented, one way or another. If Cummings is overrulled it will still have to go back to the court for trial... evidence can then be presented at that time...

The whole point of Emerson is that Judge Cummings killed the case before it got started based upon the unconstitutionality of the law. As Judge Cummings put it the only way that this defense would be available to Emerson was if the Second protected the rights of individuals. Instead of only protecting the right of States to maintain a militia. All of the other federal cases have revolved around the militia membership and or gun issue. What the appellet court has to deceide is: Is Judge Cummings right and the second protects the right of individuals regarless of any militia? Or are all the other lower federal court cases correct that Emerson has to be part of the militia and the gun's use is part of the militia?

We need to let the courts know that if they rule that the other lower federal courts are correct, then they had better back their opinion up with something more from our founders than what the court showed in Hickman v Block... ie.. "We concur with our sister courts"... That was it. Otherwise the ligitimacy of our court system in the eyes of many will be gone.



------------------
Richard

The debate is not about guns,
but rather who has the ultimate power to rule,
the People or Government.
RKBA!
 
So the judge dismissed the indictment without evidence. Truly, the appeal could go either way. Hopefully, the 5th Cir. will at least lean toward Emerson's view, in order to create a "circuit split" (different from the 9th Circuit outcome as to the 2nd), which will in turn make the supremes MUCH MORE likely to take up the matter by granting cert. It takes 5 of the 9 supreme court judges to create a certain result, but the votes of just 4 of the 9 will cause cert. to issue, so the entire court will hear it. The 5th Circuit panel will likely be a 3-judge panel from among those at the 5th - just luck of the draw, I imagine. What can WE do as individuals? Write or fax the NRA, GOA, and Second Am Foundation, and urge them to devote financial resources to the case and file an "amicus curiae" brief.
 
You guys have certainly made a very educational thread on this subject. I probably can't add anything to this thread other than following your lead in asking all to write or fax the NRA, GOA, and Second Amendment Foundation urging them to devote financial resources to the case.
By the way Futo Inu, what is a "amicus curiae" brief?
Thanks



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To own firearms is to affirm that freedom and liberty are not gifts from the state.
 
Elker,

I agree, this board is filled with some intelligent people. (not trying to be a sycophant)

Save this link, I find it very useful, especislly here:
http://www.facstaff.bucknell.edu/rbeard/diction.html

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Inflected Form(s): plural amici curiae
Etymology: New Latin, literally, friend of the court
Date: 1612
: one (as a professional person or organization) that is not a party to a particular litigation but that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question[/quote]

------------------
“The whole aim of practical politics is to keep the populace alarmed—and thus clamorous to be led to safety—by menacing it with an endless series of hobgoblins, all of them imaginary.”—H.L. Mencken
 
Futo: You seem up on this legal stuff. As I pointed out in my "NRA et all missing in action?" thread, the deadline has passed for amicus briefs to be filed in the Emerson case, and not one single solitary brief has been filed by anyone who is pro-gun. No famous constitutional scholars. No NRA, no GOA, no Kates or Kopel. Nobody. On the other hand, guys and organization on the other side I never even heard of came crawling out from under rocks to file briefs.

DC has suggested that this is because we WON in the Emerson case, and can't file amicus briefs for some legal reason related to that. I'd hate to think everyone on our side just happened to go AWOL at the same time! Any info here?

------------------
Sic semper tyranus!
 
Brett and all:

I inquired to SAF.org for an explanation to the question... it seems that the bad guys file first... the good guys then have additional time to reply to their briefs.. :) Yes, we get to answer all of those goofs. Here is the e-mail I received back.

Richard,

Only the brief supporting the Government are due. Ours are due in about a
month.

Thanks for writing. We have the best website for viewing the Emerson case.

Sincerely,

Dave LaCourse


------------------
Richard

The debate is not about guns,
but rather who has the ultimate power to rule,
the People or Government.
RKBA!
 
May I make a suggestion. Why don't we split up the gov's briefs here on TFL and everyone here take one and respond to the court? We all know the agruments. Let's get in our own dig. We have until Oct 1st to get them filed. I'm sure that we can copy the format of a brief from what we receive. Only question I have does anyone know how to get copies of those that have already been filed?

Thanks,



------------------
Richard

The debate is not about guns,
but rather who has the ultimate power to rule,
the People or Government.
RKBA!
 
Sounds fun, Bookie, and normally I'd enjoy doing something like that. (I'd especially enjoy nailing the "Potomac Institute"'s brief to the wall; Read THAT document, and you hear goose stepping in the background!)Guess I'll have to pass this time, though, as I'm getting married on the SECOND of October, and I might have some other things to occupy my time in the next couple of weeks. And for a couple of weeks AFTERWARDS, of course!

Say, could you post this explaination at "GEErnst"'s bbs? Ernest is deleting all my posts for some strange reason. ;)

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Sic semper tyranus!
 
Let's hope that the courts are increasingly influenced by the jurisprudence of original intent. As the framers meant the Second Amendment, we cannot lose. Regards, Al
 
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