Why aren't there more cases with pure 2nd Amendment defenses?

J

JimR

New member
As we read about the latest equine fecal material legislation in PRNY, and similar blatantly unConstitutional laws in PRK, PRNJ, and PRMA, to name a few, I must wonder:

Why have there not been more cases overturning some of these infringing laws on pure 2nd Amendment grounds? A few decisions on this basis could really put a stop to this kind of activity by the legislatures.

Any legal scholars out there care to comment?



[This message has been edited by JimR (edited June 23, 2000).]
 
My wife and I (And yes, we are both attorneys) have discussed this one several times over the past few years.

Our consensus seems to be that there is almost never an attractive plaintiff to use to challenge the statutes.

One of the primary reasons for this is that prosecutors, though often crazy, are rarely stupid enough to charge some little old lady with a weapon's posession charge and no other charges at the same time. Typically any defendant charged with a weapon's posession charge will be charged with some other crime as well, making them a hard sell because they have also participated in some other criminal activity.

For this reason alone the Emerson case is both unusual and potentially useful to our side. Sure, Doc Emerson is not the most stable guy around but he was not charged with anything but posession ( and/or purchase, both non-violent) of a weapon.

That, of course, and the fact that to challenge such statutes requires having a defendant/appellant willling to risk their freedom to overturn an unjust law. (Not so many people out there are as brave and committed to the cause of self-defense rights as Patrick Feely, the gentleman in Ohio who won the recent case over that state's lousy concealed weapons law.)
 
Having listened to a bunch of lawyers in this business discuss the issue recently, they are convinced that the risk of losing a clear cut case is too high. Folks have talked to the law clerks of Supreme Court justices over the years and tried other methods to scope out the SCOTUS on a pure 2nd Amend case and think it is likely to be against the RKBA.

Emerson is not a nice person but neither was Miranda. The issue should be pre-eminent though. But unless you get a much more solid pro-RKBA SCOTUS - forget it.
 
Dizzipator: Well, the answer to the government's selective prosecution defense, only bringing charges against scuzzy defendants, is to get a cooperative prosecutor to bring charges against a saintly defendant. All it takes is a friendly administration to order that done; Bringing charges against nice defendants and then deliberately losing the case is SOP for disposing of laws the executive branch doesn't like.

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Sic semper tyrannis!
 
Both sides are gun shy, figuratively and literally, from fear that the ruling will come down against them.

[This message has been edited by Erik (edited June 23, 2000).]
 
It's more complex than discussed above.

First problem, you need a FEDERAL gun crime bust to take to the Supremes, not a state law bust. Why? Because the 2nd Amendment hasn't been recognized (YET!) as being "incorporated" under the 14th, meaning under current theory, even if Emerson goes all the way and the Supremes recognise an individual right, we'll then need to take a state bust up into the Federal system. (Note: Emerson winning with the Supremes WILL most likely help in those states with a state RKBA constitutional clause...which is most of 'em.)

So what's been stopping a push against Fed gun laws the way Emerson is doing now?

1) Emerson could not have happened in the largest circuit, the 9th. The 9th already ruled in favor of the "collective right" argument, so a good judge like the one Mr. Emerson ran into in TX would have been blocked from making that sort of decision. Emerson had to happen in a circuit that hadn't ruled on the 2nd yet - the 5th circuit qualified.

2) There just aren't that many "pure Federal gun law violation busts" made in any given year.

3) Many if not most Fed gun law busts are machine-gun related. The sheer terror of full-rock-and-roll would make any such attempt highly difficult if not impossible. Take Bob Stewart, the guy in AZ the ATF just wrongfully popped over his kits. Years ago in Utah he was apparantly convicted on a full-auto felony bust. As I recall, Utah isn't in the 9th and if so, Bob had the balls and the lack of other criminal intent and records to have made a real good test case to appeal that conviction. But to do so, he would have been risking 10x as much jail if he lost...that's one hell of a risk, and since an MG is involved, the potential jail after not pleading and fighting to the max is pretty extreme, 10 years as I recall. Bob's got guts, but he caved (IF the reports we're getting are accurate). I'm not willing to say I would have done different.

And we wouldn't want to use a sawed-off shotgun case for similar reasons: high jail time if you lose plus Miller specifically clouds the issue.

In conclusion: look how rare the Emerson situation really is. It's a Fed gun bust, that involved a relatively modest gun without totally crazy jail time possibilities, in the right circuit, plus it's clearly a militia weapon!

*And* we got what turned out to be the very best initial trial judge in the nation.

Stop asking why an Emerson type of case hasn't popped up before, and thank God almighty we've got this one!

Last thing: best guess is, the current Supremes will rule in our favor if the 5th agrees with the TX judge. Let Gore get even one nominee before Emerson hits, and it's goodbye Charlie.

VOTE BUSH!

Jim
 
If they rule in our favor, it may be very limited to the specifics of the charges against Emerson and not be a sweeping away of gun laws.

Granted that helps the 800,000 or so people faced with divorce actions and restraining orders but it wont' bring gun heaven.
 
Part of the problem is most of the judges appointed were liberal before they were appointed and continue to follow the liberals agenda which means they are more often than not anti-gun. There are some exceptions but most I believe are anti-gun. One usually has to play Politics to be appointed and more often than not it is who you are and who you know.

Robert Bork was probably one of the smartest men ever nominated to the Supreme Court and look what happened to him. It was most likely a fluke that Justice Thomas was able to get in and I consider him Scalia and the chief justice to be the best three.

Another thing is it is expensive to take a case to the appellate level and most citizens can't afford it.
 
Roybean: Oh, I agree about Scalia and Thomas; And I sometimes wonder if Thomas would have been half as good a judge if they hadn't put him through that torture.

But Bork? Many of his writings since that confirmation battle suggest to me that he would have been a very bad, albiet conservative, justice. Calling the Tenth amendment "an inkblot", for instance. Sure, he wouldn't have legislated from the bench... neither would he have upheld the Constitution when confronted with federal usurpations of power. There's more to being a good justice than just defering to the other two branches, you know!

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Sic semper tyrannis!
 
Bork is also on record as stating that the Second Article is a "collective" right reserved for State National Guards and NO person has a Right to own a gun.

Bork is just another red herring. Thank goodness he was not placed on the bench. J.B.
 
While I supported Bork in his bid for the Supreme Court I'm of the opinion he has not researched and studied the 2nd Amendment. Apparently he is not alone and I don't know of any Supreme Court Justice who has. I like Clarence Thomas thus far and have no criticism of any opinions he has expressed.

However I'm not so sure that Bork would have been anti-second amendment if he researched the issue I could be wrong but one think is for certain he ain't going to be sitting with the supremes.

From the decisions he did write he appears to have a firm grip of the issues and I believe the constitution should be interpreted as it would have been in 1789 and if people don't like it they can amendment it.

In any event I would trade him for any one of the six who voted to ban school prayer last week.

By the way my first choice for the Supreme Court would be Stephen Halbrook.
 
Roybean: Yeah, and if he doesn't like the amendment he'll call it an inkblot. But I suppose it's not worth arguing about, in as much as he's never going to be on the high court.



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Sic semper tyrannis!
 
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