"Once the 5th Circuit wades through the competing views, it will have to choose whether to decide the case on Second or Fifth Amendment grounds."
I suspect both sides will hope for a 5th Amendment ruling, thus ducking the bullet (so to speak) again.
http://www.capitolalert.com/news/capalert01_20000612.html
A Texas twist in gun control: Supreme Court could weigh in
By Herbert A. Sample
Bee Washington Bureau
(Published June 12, 2000)
WASHINGTON -- Inherent in debates over gun control is an acknowledgment that the U.S. Supreme Court has said very little on the subject in the past 60 years.
That may not be true for long, for what began as a simple divorce proceeding in a small, central Texas town has escalated into a major legal confrontation over the Constitution's Second Amendment.
On Tuesday, the 5th U.S. Circuit Court of Appeals in New Orleans will confront a case that ultimately could give the Supreme Court its best chance since 1939 to interpret the 27-word amendment.
That potential has stirred antagonists on both sides of the gun-control issue, prodding a score of groups to file friend-of-the-court briefs with the 5th Circuit and legal scholars of all philosophical stripes to chime in.
"This particular case we feel really excited about," said Alan Gottlieb, head of the Second Amendment Foundation, a Washington state group that supports gun rights. "Since 1974, this is the single best case supporting our position."
Ruchi Bhowmik, an attorney at the Center to Prevent Handgun Violence, a gun-control group, sees equal potential. "Indeed, if this case were to go to the Supreme Court, it would be a great opportunity for the court to elaborate on the meaning of the Second Amendment," she said.
Though the litigation could be sidetracked in a number of ways, no Second Amendment dispute in years has offered such tantalizing potential for the justices to define the boundaries of government restrictions on firearms.
The case began two years ago in San Angelo, Texas, where Dr. Timothy Joe Emerson and his wife, Sacha, were divorcing.
At a hearing on Sacha Emerson's request for a temporary restraining order, she alleged that her husband had threatened a friend, a claim Timothy Joe Emerson did not deny. A state judge granted the order but did not explain that a 1994 federal law automatically bars people under such orders from possessing a firearm.
The law was the brainchild of Sen. Paul Wellstone, D-Minn., who said during a 1994 Senate floor debate: "In all too many painful cases, the only difference between a battered woman and a dead woman is a gun."
Two months after the restraining order was approved, Emerson allegedly made threatening remarks to his wife, and about her to police. Soon after, he was indicted in federal court for possessing a 9 mm Beretta while under the order.
Prosecutors -- and most everyone else in the gun-control debate -- were shocked when federal District Court Judge Sam Cummings declared the law unconstitutional.
The Second Amendment recognizes an individual's right to bear arms, Cummings ruled, and thus Emerson's right to his Beretta could not be superseded by a statute that requires no specific findings of a threat of violence.
"Although he may not be a criminal at all, he is stripped of his right to bear arms as much as a convicted felon," Cummings asserted. "Second Amendment rights should not be so easily abridged."
The judgment appeared to tilt against numerous district and appellate court decisions around the country, most of which turned on a 1939 Supreme Court case called U.S. vs. Miller. That unanimous ruling upheld a federal law banning sawed-off shotguns because the guns possessed no "reasonable relationship" to use in a "well-regulated militia."
But Cummings said the Miller decision did not determine whether the Second Amendment is an individual right or one held collectively by states and, as a result, no precedent existed and he was free to mold one himself. He also said Emerson's Fifth Amendment due-process rights were violated because Emerson was not warned about Wellstone's obscure statute.
The Justice Department quickly appealed to the 5th Circuit, where three judges appointed by Presidents Reagan, Bush and Clinton will hear the case.
The briefs highlight the discordant nature of the perceptions of the Second Amendment, which reads: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
The Justice Department, gun-control groups and many legal scholars assert it was meant to bar federal disarmament of organized state militias. It doesn't bar governments from restricting the possession of firearms, they say.
"Strengthening the militia and guarding against the danger of a standing army were the purposes of the Second Amendment, not enabling individuals to own guns for their own private ends," David Yassky, a Brooklyn Law School professor, contended in his brief signed by four dozen other academics.
But just as Yassky and allies bolster their points with references to the work of James Madison, who wrote the Second Amendment, so do Emerson's lawyer, gun-rights groups and other scholars.
"Modern scholarship has established beyond any reasonable doubt that the Second Amendment protects an individual right to keep and bear arms, not some sort of 'collective' or 'state' right to maintain formal military organizations," Professor Nelson Lund of George Mason University wrote in a brief signed by 124 other academics.
Once the 5th Circuit wades through the competing views, it will have to choose whether to decide the case on Second or Fifth Amendment grounds. But that is unlikely to be the last word since the losing party is expected to appeal to the Supreme Court.
Copyright © The Sacramento Bee
I suspect both sides will hope for a 5th Amendment ruling, thus ducking the bullet (so to speak) again.
http://www.capitolalert.com/news/capalert01_20000612.html
A Texas twist in gun control: Supreme Court could weigh in
By Herbert A. Sample
Bee Washington Bureau
(Published June 12, 2000)
WASHINGTON -- Inherent in debates over gun control is an acknowledgment that the U.S. Supreme Court has said very little on the subject in the past 60 years.
That may not be true for long, for what began as a simple divorce proceeding in a small, central Texas town has escalated into a major legal confrontation over the Constitution's Second Amendment.
On Tuesday, the 5th U.S. Circuit Court of Appeals in New Orleans will confront a case that ultimately could give the Supreme Court its best chance since 1939 to interpret the 27-word amendment.
That potential has stirred antagonists on both sides of the gun-control issue, prodding a score of groups to file friend-of-the-court briefs with the 5th Circuit and legal scholars of all philosophical stripes to chime in.
"This particular case we feel really excited about," said Alan Gottlieb, head of the Second Amendment Foundation, a Washington state group that supports gun rights. "Since 1974, this is the single best case supporting our position."
Ruchi Bhowmik, an attorney at the Center to Prevent Handgun Violence, a gun-control group, sees equal potential. "Indeed, if this case were to go to the Supreme Court, it would be a great opportunity for the court to elaborate on the meaning of the Second Amendment," she said.
Though the litigation could be sidetracked in a number of ways, no Second Amendment dispute in years has offered such tantalizing potential for the justices to define the boundaries of government restrictions on firearms.
The case began two years ago in San Angelo, Texas, where Dr. Timothy Joe Emerson and his wife, Sacha, were divorcing.
At a hearing on Sacha Emerson's request for a temporary restraining order, she alleged that her husband had threatened a friend, a claim Timothy Joe Emerson did not deny. A state judge granted the order but did not explain that a 1994 federal law automatically bars people under such orders from possessing a firearm.
The law was the brainchild of Sen. Paul Wellstone, D-Minn., who said during a 1994 Senate floor debate: "In all too many painful cases, the only difference between a battered woman and a dead woman is a gun."
Two months after the restraining order was approved, Emerson allegedly made threatening remarks to his wife, and about her to police. Soon after, he was indicted in federal court for possessing a 9 mm Beretta while under the order.
Prosecutors -- and most everyone else in the gun-control debate -- were shocked when federal District Court Judge Sam Cummings declared the law unconstitutional.
The Second Amendment recognizes an individual's right to bear arms, Cummings ruled, and thus Emerson's right to his Beretta could not be superseded by a statute that requires no specific findings of a threat of violence.
"Although he may not be a criminal at all, he is stripped of his right to bear arms as much as a convicted felon," Cummings asserted. "Second Amendment rights should not be so easily abridged."
The judgment appeared to tilt against numerous district and appellate court decisions around the country, most of which turned on a 1939 Supreme Court case called U.S. vs. Miller. That unanimous ruling upheld a federal law banning sawed-off shotguns because the guns possessed no "reasonable relationship" to use in a "well-regulated militia."
But Cummings said the Miller decision did not determine whether the Second Amendment is an individual right or one held collectively by states and, as a result, no precedent existed and he was free to mold one himself. He also said Emerson's Fifth Amendment due-process rights were violated because Emerson was not warned about Wellstone's obscure statute.
The Justice Department quickly appealed to the 5th Circuit, where three judges appointed by Presidents Reagan, Bush and Clinton will hear the case.
The briefs highlight the discordant nature of the perceptions of the Second Amendment, which reads: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
The Justice Department, gun-control groups and many legal scholars assert it was meant to bar federal disarmament of organized state militias. It doesn't bar governments from restricting the possession of firearms, they say.
"Strengthening the militia and guarding against the danger of a standing army were the purposes of the Second Amendment, not enabling individuals to own guns for their own private ends," David Yassky, a Brooklyn Law School professor, contended in his brief signed by four dozen other academics.
But just as Yassky and allies bolster their points with references to the work of James Madison, who wrote the Second Amendment, so do Emerson's lawyer, gun-rights groups and other scholars.
"Modern scholarship has established beyond any reasonable doubt that the Second Amendment protects an individual right to keep and bear arms, not some sort of 'collective' or 'state' right to maintain formal military organizations," Professor Nelson Lund of George Mason University wrote in a brief signed by 124 other academics.
Once the 5th Circuit wades through the competing views, it will have to choose whether to decide the case on Second or Fifth Amendment grounds. But that is unlikely to be the last word since the losing party is expected to appeal to the Supreme Court.
Copyright © The Sacramento Bee
