Second Amendment is upheld

R

rod

New member
AP is running a story of a case in Texas where a man stands accused of illegally possessing a gun during a divorce. There's apparently a little known law that makes it illegal in that particular part of Texas.

Anyway the defendant invoked the Second Amendment and the Federal prosecutors stated that the Second only applies to National Guard, states militia yada yada. They lost in Federal court and the judge's ruling specifically states that the Second applies to all citizens of the US.

The Feds promise to move the case upstairs and if it goes up high enough (Federal Appeals Court is the next step). It could become the legal showdown everyone's been expecting over the Second Amendment.

Read about it at:
<a href="http://www.texaswest.com/news/13.htm"> San Angelo Times Second Amendment AP Story </a>

=rod=
 
Nice to know we have one Federal District judge with his head tightly attached. As I recall, this will likely go to the U.S. Fifth Circuit Court of Appeals. This may eventually be tracked at http://www.ca5.uscourts.gov/ . When I was doing tax work, the Fifth was known as the 'Flaky Fifth' because they tended to march to their own drummer. If still true, that could be very helpful when it comes to this serious subject.

For info re: this brave judge, see Judge Commings at http://www.txnd.uscourts.gov/biojudge.htm . Note he was appointed by Reagan.

Rod, thanks for bringing this to our attention. Should be interesting to follow, but I'll be surprised if this ever gets heard by the Supreme Court.
 
Thanks Rod

Very interesting that this "little known law" is a Federal statute and so the Feds can get involved in divorce cases, and they are using the fact that the man got rid of other guns (can you say compliance?) as evidence against him.
Good, let the Feds appeal and we can all push for a Sup Court hearing. Those SOBs have shirked their duty long enough....time to get this whole issue out in the open once and for all

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"Quis custodiet ipsos custodes"
 
Just a guess...when the Supreme Court rules on this, the issues surrounding the 2nd will be brought to the fore. I wonder if we will win the PR war around it.

If we lose in the Court, I expect major stockpiling. If we win, renewed legal challenges to gun control laws. Either way, I hope to see this resolved sooner rather than later.

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Cornered "but cheery" Rat
http://ddb.com/RKBA Updated March 20
 
History says that Jeff is probably right, SCOTUS seems to think that this particular constitutional dispute is one that they do not want to weigh in on.

But if the Feds lose in the court of appeals then any move to the Supreme Court will be their initiative and if the Supremes refuse to hear it that will appear to be upholding the traditional interpretation of the Second (which means that it will never appear in any newspaper or TV account :-)).

That might be the best resolution we can get out of this case.

=rod=
 
Rod: Don't be such a pesimist! We've got Thomas and Scalia on our side for sure, and according to what Thomas wrote in his concuring opinion in Printz, the only reason the Supreme Court hasn't ruled on the Second amendment recently is that our "leaders" are too chicken to raise the Second amendment in their court challenges; If we raise it, they WILL take the case. And from the little I've seen about it, this case is a beaut for our side!
 
I hope you're right Brett. But my interpretation of Thomas' opinion was that he was admonishing the court itself for being to chicken to take up the issue.

But I do agree that both sides (pro gun and pro control) have been scared to bring the issue before the court, while at the same time pointing the finger at each other and saying that the other one is the one that is really scared.

A lot is at stake in such a case. Our side would like to prepare with lots of published scholarship and a carefully chosen case with a defendant that presents well and has a clear grievance. Sometimes things just happen though.

=rod=
 
The Mining Company <a href="http://civilliberty.miningco.com/library/weekly/mcurrent.htm?pid=2771&cob=home">Civil Liberty Feature</a> page for this week is about this case.

[This message has been edited by Morgan (edited April 05, 1999).]
 
Rod, you do raise an important point. If the 5th upheld the District Court, and the Supreme Court denied certiori, then the opinion would still be law for those states in the 5th Circuit. That is, Texas, Louisiana and Mississippi would have become free states once again! ;)

The rest of us would be quite jealous. OTOH, could the fed's really abide that result? Any TFL attorney members want to add their opinions?
 
By the way, here's what Thomas said in the Printz decision, at least in part: "This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second amendment. If, however, the Second amendment is read to confer a personal right to "keep and bear arms", a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. As the parties did not raise this argument, however, we need not consider it here. Perhap, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been
considered, as the palladdium of the liberties of a republic."
Apparently, Thomas thinks that a case must actually explicitly raise an issue, such as the Second amendment, before the Court has an opportunity to rule on it. I might note that I'm not entirely happy with the Justice's remarks; He seems to think that the federal government's authority to regulate interstate commerce would over ride the Second amendment, where it's actually applicable!
 
Does anyone know where to get a copy of this case? I am very interested in reading it. Also plan on sending a letter to judge Cummings. All the research that I have done on the 2nd shows me that if we can get it to the Supreme Court, we will win. There is so much material out there now that the evidence is overwhelming. Including evidence on the intent of the 14th making the 2nd held against the states.

Thanks,

Richard
 
Bookie..

I suggest you contact the jurisdictional court (Judge Cummings') as this case was just ruled on and hasn't proliferated into various legal archives yet.

And I agree with you. Its long been believed that the SC hasn't heard a 2ndA case since Miller because it would end up destroying all gun control legislation. Miller would have to be overturned, hence everything based on it. In short, just hearing a 2ndA case would toss gun control legislation back pre-1938.
Further, there are a great deal many more informed and active people who have an extreme interest in RKBA than in the 1930's. This is the gun-grabbers worst nightmare...having to go back to scratch and fight on a level playing field. Secondly, it could very likely lead to a Constitutional Congress/amendment process because, the 2nd is quite clear and simple. The gun-grabbers have no Constitutional basis for their position and need the 2nd to be eliminated or amended. I sincerely believe that such an attempt would lead to Civil war.
They have been successful thus far because of disinformation, back-door machinations and blatant self-interest on the part of politicians.
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"Quis custodiet ipsos custodes"



[This message has been edited by DC (edited April 05, 1999).]
 
The Texas State Rifle Association's website contains a copy of the "full text" of Judge Cummings' opinion.

http://www.tsra.com/Emerson.htm
 
God bless Texas!

Our prayer was answered with Judge Cummings' decision. Now, is there ANY possible way to push for a favorable outcome throughout the appellate process?
 
Anyone notice this line in the AP story:

Emerson, a family doctor in San Angelo, had been indicted in federal court on five counts of violating a restraining order after ""brandishing"" a handgun in front of his wife and her daughter.

I read the case and the charges. What he did was to tell his wife over the PHONE that he was going to kill her. At no time did she or her attorney claim that he had threatened her with a gun in her face.

Guess the AP is trying to slip in a little extra here to make it sound like the guy got off when he is a violent criminal. Trying to make people believe that what the judge did was wrong. Talk about bias. Someone should put AP to the mat on this one.

Richard
 
In Texas, a threat to kill someone (even over the phone) appears to be a class B misdemeanor. (TX PC 22.07) Therefore the press may be stretching some, but they are within reason, if they say the actor is an "alleged" violent criminal.

However, one can not "brandish" a weapon over the phone. (But truth doesn't limit the anti-self defense gang....)

BTW, other threats, affecting greater number of possible victims, public meetings and other public resources can be a class A misdemeanor or a third or even second class felony.

[This message has been edited by Dennis (edited April 06, 1999).]
 
Bookie: What HE did I haven't a clue; All I know is that she ALLEGED that he threatened her over the phone. Maybe just to get that restraining order. I've heard the truth can be the first thing thrown out the window in a divorce proceding.
 
Well all I know he was not charged with a crime. He did not use his gun against his ex or threaten her with it. I do know however that Brandishing a gun brings up in peoples minds a picture of a drunken SOB who is more likely than not to shoot someone. If I was Emerson I would sue AP over this. This comment was intentional to sway the public into believing that the judges ruling in this matter was unjustified. It just burns me up when the press lies like that.

Richard
 
bookkie,
Stick a fork in Bookkie - I think he's done!

My friend, if it burns you up when the press lies, you must be "crispy crittered"!

Poor "Uncle Tom" Jefferson thought the press would keep a tight rein on government by fully informing the public. So much for high hopes.....in the press and/or the public.

Hmmm. 2130hrs local. Time for a Shiner Bock.
 
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