A new RKBA case just finished in the 8th Circuit, US vs. Hutzell. It was low-profile but it resulting in some REALLY cool statements by the 8th.
In a nutshell: a guy is convicted of a violent misdemeanor. If his case is typical of most states, that means he loses gun rights "privileges"
for some specified period of years.
This is different from Emerson - Hutzell was actually convicted.
Anyways, he's found with a gun later and busted. Because he'd actually been through a full court process, the 8th said he's screwed and I can't totally fault that, although as with most of the rest of you I think when a guy's "done his time", he should get full rights back.
But: the 8th said things like:
"Although an individual's right to bear arms is constitutionally protected, see United States v. Miller, 307 U.S. 174, 178-79 (1939), the possession of a gun, especially by anyone who has been convicted of a violent crime, is nevertheless a highly regulated activity, and everyone knows it. Page 4."
What does this mean?
1) They're reading Miller *correctly* for a change!!! Judge Cummings in Texas made the first Emerson ruling on the same basis: US vs. Miller confirmed an individual RKBA regarding "guns that can potentially see militia duty" and used the "all able-bodied potential fighters" definition of "militia" rather than "army reserves" of any sort.
2) While it was "only in dicta", this statement means there's already a conflict between the 9th and 8th circuits over "individual versus collective" 2A/Miller interpretation. Which leads to...
3) The VERY NEXT RKBA case that hits the Supremes has a real high likelyhood of seeing scrutiny to resolve the differences.
4) The next case that could possibly go to the Supremes isn't Emerson - it's the California Roberti-Roos assault rifle case where we just got thrashed in the Calif Supreme Court. The only possible appeal from there is to the SCOTUS. Will Chuck Michel and company take it that far? My guess is yes. Before US vs. Hutzell it would have been highly unlikely the SCOTUS would hear it - Calif is in the 9th, so the Calif Supremes agreed with their local circuit...but the differences are now "already in play" so it's anybody's ballgame?
I dunno how long Chuck has before he can file his appeal. He might try and wait as long as possible, hoping an Emerson ruling in the 5th makes SCOTUS review of his case even more likely. But: if the 5th manages to "weasel out" of the 2nd amendment issue by ruling for Mr. Emerson on 5th or 10th amendment grounds, it doesn't leave us totally dead in the water.
And with both Professors Lawrence Tribe and Akhil Amar supporting Judge Cummings and the 8th Cicuit, SCOTUS review is looking more likely every day.
Vote Bush!!!
Almost forgot: full details on Hutzell is here: http://www.saf.org/pub/rkba/news/8thCircuitDecisions.htm - US vs. Miller is linked from there, it's a critical read if you haven't seen it yet. THAT is the foundation for all current gun control, and it's built on sand!
Jim
In a nutshell: a guy is convicted of a violent misdemeanor. If his case is typical of most states, that means he loses gun rights "privileges"
for some specified period of years.This is different from Emerson - Hutzell was actually convicted.
Anyways, he's found with a gun later and busted. Because he'd actually been through a full court process, the 8th said he's screwed and I can't totally fault that, although as with most of the rest of you I think when a guy's "done his time", he should get full rights back.
But: the 8th said things like:
"Although an individual's right to bear arms is constitutionally protected, see United States v. Miller, 307 U.S. 174, 178-79 (1939), the possession of a gun, especially by anyone who has been convicted of a violent crime, is nevertheless a highly regulated activity, and everyone knows it. Page 4."
What does this mean?
1) They're reading Miller *correctly* for a change!!! Judge Cummings in Texas made the first Emerson ruling on the same basis: US vs. Miller confirmed an individual RKBA regarding "guns that can potentially see militia duty" and used the "all able-bodied potential fighters" definition of "militia" rather than "army reserves" of any sort.
2) While it was "only in dicta", this statement means there's already a conflict between the 9th and 8th circuits over "individual versus collective" 2A/Miller interpretation. Which leads to...
3) The VERY NEXT RKBA case that hits the Supremes has a real high likelyhood of seeing scrutiny to resolve the differences.
4) The next case that could possibly go to the Supremes isn't Emerson - it's the California Roberti-Roos assault rifle case where we just got thrashed in the Calif Supreme Court. The only possible appeal from there is to the SCOTUS. Will Chuck Michel and company take it that far? My guess is yes. Before US vs. Hutzell it would have been highly unlikely the SCOTUS would hear it - Calif is in the 9th, so the Calif Supremes agreed with their local circuit...but the differences are now "already in play" so it's anybody's ballgame?
I dunno how long Chuck has before he can file his appeal. He might try and wait as long as possible, hoping an Emerson ruling in the 5th makes SCOTUS review of his case even more likely. But: if the 5th manages to "weasel out" of the 2nd amendment issue by ruling for Mr. Emerson on 5th or 10th amendment grounds, it doesn't leave us totally dead in the water.
And with both Professors Lawrence Tribe and Akhil Amar supporting Judge Cummings and the 8th Cicuit, SCOTUS review is looking more likely every day.
Vote Bush!!!
Almost forgot: full details on Hutzell is here: http://www.saf.org/pub/rkba/news/8thCircuitDecisions.htm - US vs. Miller is linked from there, it's a critical read if you haven't seen it yet. THAT is the foundation for all current gun control, and it's built on sand!
Jim
I think you are right on. This is very good news and it is just one more reason to vote for Bush so that he can save the Supreme Court from Al Gore!!!