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?
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?