Defendant is accused of having 'militia' weaponry

[ctdonath]

Two things are dramatically missing from every case on the subject:

1. The defendant/plaintiff needs to be an able-bodied male aged 17-45. While that's not the limit intended by the 2nd Amendment, it IS what Congress has defined as the US militia (be it "unorganized", self-armament becomes that much more important). Independent "militias" are not legally recognized and look too much like overgrown teenagers playing army. State militias could only pursue the case if the state pursues it, not individual members not authorized to be so armed (which few states do).

2. Emphasis on "shall not be infringed". Congress may have the power to regulate interstate commerce, but unlike any other commerce, that affecting the keeping and bearing of arms "shall not be infringed".

BTW: The focus needs to be on 922(o), the complete ban on a category of standard military weapons. Parker has a chance because that too is a ban, but lacks the militia angle (don't get me wrong: I personally don't think the militia angle is what the Founding Fathers had exclusively in mind, but it's the only way to crack the case at this point).

Methinks everyone is trying to make it all too complicated, and fall for too many red herrings.

I'll push the idea again:
We need a lot of simultaneous suits from able-bodied males aged 17-45 stating
- "By act of Congress, I am a member of the US militia."
- "By neglect of Congress, I am left to arm & train myself for time of need."
- "By prohibition of Congress, I am unable to arm & train myself for common modern militia combat."
- "I pray this court will overturn 922(o) on grounds that it infringes my right to keep and bear arms as explicitly prohibited by the Second Amendment, and will compel the BATFE to accept my Form 4 application for transfer of an M4 machinegun, that being representative of a common modern implement for defending the security of a free state."
I just need a lawyer to review this, and expansion thereof, for a thumbs-up for lots of people to pursue it.

 

[Bartholomew Roberts]

ForeverArmed, I have nothing to say to you. I disagree with your conclusions and I do not see where we are going to reach agreement soon. You know the rules of the board, please abide by them.

I advocate a system with a little rationality and sanity... one based on the rule of law (as the law was written and intended). As I said before, I'm not suggesting that judges be divorced from determining law; however, I've heard about too many cases where juries were kept uninformed of important and pertinent information, and that is not right either.

The Second Amendment is either an individual right or it isn't. You are suggesting that a jury determine that. I do not think you are going to get a good result that way - number one, many more juries will reject that argument than accept it - particularly if soccer mom understands that accepting it means that the guy next door can build a Browning 1919 in his garage. Number two, the decisions will be even more confusing than the current patchwork of laws.

Are you honestly telling me that you have no problem with that?

No, I am telling you what how the fact/law distinction works in our legal system and I was pointing out to both you and TRH that there were drawbacks and benefits to both approaches.

Earlier, you suggested that we'd still be stuck with the "separate but equal" result of Plessy v. Ferguson if a judge's ability to decide law were not absolute. Do you really think that if juries heard all the evidence (perhaps along with the judge's instructions as to the relevant law), they would make more bad decisions?

I think white juries in the South circa 1960 would certainly be reluctant to adopt the ruling in Brown v. Board of Education. Don't you see that as a likely outcome?

I have searched for, but not found, evidence of that.

Read the 5th Circuit opinion on Emerson where they upheld the conviction.

There was U.S. v. Johnson Jr., but that was essentially overturned by Emerson.

I am not aware of any case that Emerson has overturned. I think you are incorrect here.

The Emerson decision clearly and energetically supported the individual right interpretation, which has been repeatedly denied in the 8th, 9th, and 10th circuits.

Bottom line: there is no legal individual RKBA in this country as per current case law.

I am confused. Which of these is your position?

We also have US v. Dalton and United States v. Rock Island Armory in which the NFA ban on post-1986 firearms was struck down. The argument was that the government ban is based on a tax, but the government refuses to accept the tax for post-1986 weapons, and thus the basis of the government's argument (that the "ban" is actually a tax, i.e. a source of revenue) is invalid.

Dalton is probably not even controlling in the 10th Circuit. Even in the 5th Circuit, nobody follows Dalton because the general logic followed by the other circuits is that you can avoid the tax issue by not illegally manufacturing or transferring machineguns. Dalton was also tried again for the crime, appealed all the way to the Supreme Court on double jeapordy grounds and then had the indictment reinstated and yet another trial ordered. After that, there is no further case on the subject (a strong indicator that Dalton pled guilty at that point).

Yet the Supreme Court has ignored the issue and denied certiorari for 2nd amendment cases on many occasions.

First, none of those are Second Amendment cases. They are all tax cases and the same result is happening in each circuit regardless of minor differences in the law. Likewise with Emerson, despite the fact that Emerson adopts an individual rights interpetation, it also says that all current federal laws (including the AWB at the time) are "reasonable restrictions." - so the Court is not going to step in and address a hot issue when there is no conflict in the result obtained.

Here is a great site for learning more about Supreme Court research:
http://www.llrx.com/features/supremectwebguide.htm

That's almost a direct quote from Hale, the decision of which continues to say:

That quote is cited in Hale; but is not from Hale.

I have no idea what the rest of your multi-post series is meant to illustrate. If nothing else, Stewart should illustrate the dangers of trying to challenge gun laws in circuits where precedent is hostile. We now have a ruling that says that Raich applies to machineguns that have no connection in interstate commerce.

Clearly the Supreme Court believes that firearms ownership can be regulated by Congress via the commerce clause... and it's clear that the Court will impose no fundamental restrictions to what those regulations might be.

Obviously the Supreme Court believes that firearms ownership can be regulated by Congress... you'd have to be deluded to believe otherwise given the past 73 years of federal regulation by Congress. I hope it is a mistake to reach the conclusion that the Supreme Court will tolerate any restriction Congress enacts though. Certain members of the Court have already indicated a willingness to challenge Congress on this issue - they just don't appear to be a majority yet.

 

[cropcirclewalker]

2a is a done deal.

It will remain done until congress steps up to the plate and passes "The second amendment restoration bill of 3--- (ENTER YEAR HERE).

A law that declares that

"The militia consists of all the people that are currently and futurely drawing breath and it is beyond the judicial to decide any otherwise either as a matter of fact or law."

and

"All things, tangible or not, from Alabaster Aardvarks to Zebra Striped Zithers and all others, before and after, above and below, inner or outer, higher or lower or any other system of measurement is hereby declared to be suitable as a weapon for the militia as necessary for the preservation of a free state."

And that, My friends will happen just after 12 perfectly matched and physically adroit Hippos wearing pink tutus dance pirouettes to the music of the Air Force Flying Swine Band through the senate chambers.

The republic is doomed.

Yes, all the BoR has been essentially inerted. Yes, but for another name we even have troops quartered among us.

The last of the amendments that might have a chance is the first and Because of the internet there is still a slim chance of the republic's recovery.

Slim.

 

[up_onus]

Im in favor of RKBA for militia,
On that note, somehow OJ Simpson was vindicated (regardless of his guilt or lack of guilt) with a "DreamTeam" as dubbed by the newspapers....

I only wonder what would happen if everybody chipped in even a dollar to fight "the man" and create a RKBA dream team? In my humble opinion some of the establishments that have been created currently to continue our freedoms may be worried about losing credibility with a trial like this. This trial needs national attention, and support from people who believe! If there are a million believers, and a dollar or two each?

The average citizen does not understand why this is a battle, "some nutjob who wants to make his own machine guns.....", yah right!?!? This is the reason for the way the law is today, takes action/money to change things as has been shown throughout our Judicial systems history.

I wish him the best, and I am happy to see someone doing something or at least tryin. I do not have the stones to follow through like him, he put it all on the line. People criticise so easily....

 

[ForeverArmed]

ForeverArmed, I have nothing to say to you. I disagree with your conclusions and I do not see where we are going to reach agreement soon. You know the rules of the board, please abide by them.

It is not my intention to break any board rules, and I honestly don't believe I have done so -- unless disagreeing with a moderator is a breach of the rules.

I have no problem with anyone who disagrees with my views. I believe in defending them in a civil manner. Note that I never personally attacked you, even though you started off with an ad hominem right off the bat. Even other posters noticed that. Let me suggest that if you intend to win over people to your line of thinking, including casual gun owners who might be fence-sitters on many RKBA issues, it's best not to sit on a high horse and belittle peoples' opinions or efforts merely because they haven't owned guns for decades. Furthermore, it is my understanding that such personal attacks are against the board rules.

Again, for the record, I am NOT advocating that anyone go out and shoot anyone. (I have my own resolution regarding what I will do if anyone attempts to arrest me for violating any unconstitutional law, but that's not something I'll discuss here.) I do, however, strongly advocate that people be mentally and physically prepared to defend their rights against the government in case that becomes necessary. Without advocating the violent overthrow of the government at this time -- I do still think there's a (slim) chance of a peaceful solution -- we must remember that fighting against a tyrannical government is exactly what the Second Amendment is about. If you disagree, then I'm sorry, but you're WRONG, and the writings of the Founders prove it. If Americans are disarmed of their combat-suitable weapons, then freedom dies here forever.

Let me reiterate my political position one more time, and this should be my final word on this thread. As I've said, I'm a Libertarian. I see the choice between Republicans and Democrats as a choice between mildly anti-gun and very anti-gun. However, having a mere handful of individuals break from the Republican Party to vote Libertarian will only put the Democrats in power. OTOH, if a sufficiently large percentage of gun owners can agree ahead of time to vote Libertarian, then electoral success will be assured.

If gun owners continue to attempt to defend their rights as they have been in the past, then the results will continue to be the same.

 

[nobody_special]

I am not aware of any case that Emerson has overturned. I think you are incorrect here.

In US v. Johnson Jr (1971), the 5th circuit ruled that the 2nd was not an individual right. In Emerson, they ruled that it is an individual right.

The Emerson decision clearly and energetically supported the individual right interpretation, which has been repeatedly denied in the 8th, 9th, and 10th circuits. [...] Bottom line: there is no legal individual RKBA in this country as per current case law.

I am confused. Which of these is your position?

Both are correct, I think. Emerson bucked the trend by ruling for an individual right, and that interpretation of the 2nd amendment was pretty good. However the Emerson ruling is not supported by any other case law that I have seen. The Supreme Court's application of Raich in Stewart is also notable here, as it suggests that the Court will likely enforce an almost infinitely broad application of the commerce clause regardless of the 2nd amendment.

Dalton is probably not even controlling in the 10th Circuit. Even in the 5th Circuit, nobody follows Dalton because the general logic followed by the other circuits is that you can avoid the tax issue by not illegally manufacturing or transferring machineguns. Dalton was also tried again for the crime, appealed all the way to the Supreme Court on double jeapordy grounds and then had the indictment reinstated and yet another trial ordered. After that, there is no further case on the subject (a strong indicator that Dalton pled guilty at that point).

Yeah. I had a closer look at the Dalton decisions... he only won the first round because they tried him under the 1968 tax statute instead of the 1986 ban, which is not based on tax law but relies upon the commerce clause. However, my argument is correct in that Stewart and Raich preclude any possible argument against the 1986 ban on commerce clause grounds. The arguments based on the government not accepting a tax are apparently valid but irrelevant.

Presumably the Rock Island Armory case is also irrelevant.

First, none of those are Second Amendment cases. They are all tax cases and the same result is happening in each circuit regardless of minor differences in the law. Likewise with Emerson, despite the fact that Emerson adopts an individual rights interpetation, it also says that all current federal laws (including the AWB at the time) are "reasonable restrictions." - so the Court is not going to step in and address a hot issue when there is no conflict in the result obtained.

They aren't all tax cases, as 18 USC 922(o) simply outlaws ownership of post-1986 machine guns outright. The second prosecution of Dalton was under 922(o).

Emerson was a 2A case, and is probably irrelevant in light of Stewart/Raich which allow Congress to ban any economic activity and possession or manufacture of any fungible product. Raich doesn't say that Congress can only limit these things to a reasonable degree. And given that every other court has adopted some sort of collective interpretation, I wouldn't rely on Emerson to protect the RKBA.

I have no idea what the rest of your multi-post series is meant to illustrate.

Partly, it's a stream-of-consciousness resulting from the learning process. I thought the long post from last night might interest some here, in that it examined a bit of the decision-making process in the Fincher trial.

Obviously the Supreme Court believes that firearms ownership can be regulated by Congress... you'd have to be deluded to believe otherwise given the past 73 years of federal regulation by Congress. I hope it is a mistake to reach the conclusion that the Supreme Court will tolerate any restriction Congress enacts though. Certain members of the Court have already indicated a willingness to challenge Congress on this issue - they just don't appear to be a majority yet.

Yes, though the Supreme Court has been remarkably silent on 2nd amendment issues in the past 73 years. I can't say what the Court might tolerate in the future. However, judging from current case law (especially Stewart), I think there's a reasonable basis to claim that any restriction would likely be upheld by federal courts, regardless of how reasonable it is.

It will be interesting to see what happens in the D.C. handgun ban case.

 

[Liberal Gun Nut]

Nobody Special, your analysis sounds spot-on to me. The Raich decision was an abomination and we're screwed from that. I'll say again, nury nullification may be the best hope. It sounds like there will be more defendants in this case, and I hope that all the publicity will trickle into the heads of potential jurors in the area there.

 

[Bartholomew Roberts]

In US v. Johnson Jr (1971), the 5th circuit ruled that the 2nd was not an individual right. In Emerson, they ruled that it is an individual right.

Technically speaking, Johnson Jr didn't recognize a collective right any more than Miller did. It said the exact same thing "in the absence of any evidence..." The opinion is ambiguous enough that you could easily argue that Emerson just distinguishes it. After all Emerson does address Miller in its decision and so anything it applied to Miller would apply to Johnson as well (and the 5th cannot overrule Miller).

They aren't all tax cases, as 18 USC 922(o) simply outlaws ownership of post-1986 machine guns outright. The second prosecution of Dalton was under 922(o).

Yes; but prosecutions under 922(o) are yielding the same result across all the circuits, so no need for the Supreme Court to visit that one.

Emerson was a 2A case, and is probably irrelevant in light of Stewart/Raich which allow Congress to ban any economic activity and possession or manufacture of any fungible product. Raich doesn't say that Congress can only limit these things to a reasonable degree.

A major difference with firearms though is that there isn't a Second Amendment for marijuana. If the Court adopted an Emerson-outlook on the Second Amendment (an individual right subject to reasonable restrictions and most current federal laws are reasonable), then they could reach the conclusion that Raich is controlling in Stewart's case without necessarily saying that ANY regulation would be acceptable.

In fact, I would almost like to see the current Congress really overreach and go for broke with a widespread confiscatory ban just to see if the Supreme Court would draw a line. However, I think we would be better off waiting for Stevens to leave the Court since he has already indicated in Lopez that he was OK with such a ban.

And given that every other court has adopted some sort of collective interpretation, I wouldn't rely on Emerson to protect the RKBA.

I wouldn't rely on Emerson to protect RKBA even if it was adopted wholesale by the Supreme Court, since it found an individual right while also finding the ban on ugly guns to be a "reasonable restriction." Even if SCOTUS adopts Emerson, we will still have quite a debate over what constitutes a "reasonable restriction." That is when you will see the lawsuits begin to fly...

 

[cassandrasdaddy]

nobady special

thanks for some real meat to chew on. it gives me a headache but thinking is good for me and those posts were a far cry from some of the ranting. i'm gonna be a while digesting em

 

[nobody_special]

1. The defendant/plaintiff needs to be an able-bodied male aged 17-45.

The Government's position is that the 2nd amendment applies to the militia only insofar as that militia is an instrument of the state... i.e. the national guard. The unorganized militia doesn't count, except to the 5th circuit in Emerson. If the "unorganized" militia argument were valid in they eyes of the courts, it would have been used and upheld long before now.

2. Emphasis on "shall not be infringed". Congress may have the power to regulate interstate commerce, but unlike any other commerce, that affecting the keeping and bearing of arms "shall not be infringed".

While I agree with the sentiment, once again precedent does not. Even Emerson, which recognized the 2nd as an individual right, did not overturn the ban on NFA weapons or the ban of people under a restraining order from possessing firearms.

BTW: The focus needs to be on 922(o), the complete ban on a category of standard military weapons.

There is a large body of precedent here, and 922(o) has been upheld in every case. The only way to overturn 922(o) would be to amend the constitution to alter or remove the commerce clause.

We need a lot of simultaneous suits from able-bodied males aged 17-45 stating
- "By act of Congress, I am a member of the US militia."
- "By neglect of Congress, I am left to arm & train myself for time of need."
- "By prohibition of Congress, I am unable to arm & train myself for common modern militia combat."
- "I pray this court will overturn 922(o) on grounds that it infringes my right [...]

That approach will fail due to your 2nd point. The federal government supplies the national guard with weapons, therefore the militia has not been neglected. Again, this is precedent and you would not win a case with these arguments.

"All things, tangible or not, from Alabaster Aardvarks to Zebra Striped Zithers and all others, before and after, above and below, inner or outer, higher or lower or any other system of measurement is hereby declared to be suitable as a weapon for the militia as necessary for the preservation of a free state."

And that, My friends will happen just after 12 perfectly matched and physically adroit Hippos wearing pink tutus dance pirouettes to the music of the Air Force Flying Swine Band through the senate chambers.

I love the colorful language! And I completely agree with the sentiment.

I'll say again, nury nullification may be the best hope.

Unfortunately, jury nullification is neither binding nor common. In fact, the jury instructions in the Fincher case expressly prohibited it (without actually using the term).

A major difference with firearms though is that there isn't a Second Amendment for marijuana. If the Court adopted an Emerson-outlook on the Second Amendment (an individual right subject to reasonable restrictions and most current federal laws are reasonable), then they could reach the conclusion that Raich is controlling in Stewart's case without necessarily saying that ANY regulation would be acceptable.

There may not be an amendment protecting marijuana, but arguably growing a plant on your own land should perhaps be considered an inalienable right (though perhaps not in the present political climate). And while I agree, the court adopting Emerson's viewpoint would avoid the worst-case scenario, but as you point out later...

I wouldn't rely on Emerson to protect RKBA even if it was adopted wholesale by the Supreme Court, since it found an individual right while also finding the ban on ugly guns to be a "reasonable restriction."

Emerson is a compromise which actually gains us nothing from the status quo, and leaves open the "slippery slope" toward ever more restrictive gun control laws.

One further comment: I don't see that Emerson discusses the 1994 AWB in particular; indeed, the case concerns a Beretta, and the appellate court decision states "...we will not now further elaborate as to the exact scope of all Second Amendment rights." If the Supreme Court adopted the viewpoint of Emerson, it would be very interesting to see the effect on handgun and "evil feature" bans.

But that is a best-case scenario, and it seems unlikely. The more likely alternative is that there is no RKBA at all.

 

[Kim]

So did the liberterian lawyer who wanted pot legalized screw the 2nd amendment. He should have started with the 2nd. But NO POT IS SO MUCH MORE IMPORTANT. Personally I still think the USSC can protect the 2nd from these regulations if it wanted to. The problem is it does not want too. The questions is HOW CAN WE CHANGE THEIR MINDS. It is times like this we need an ACLU for the 2nd amendment group. One that sets out the legal way to work up to what we want just like they do by playing the legal system like a violin. Pick the right case or make the case, pick the right Judges, work up over years to it is the right time to pop the question. I will be dead before this happens but I hope it does. Heck the ACLU spent decades on getting their strict separation of church and state doctrine enshrined as legal gospel. Where are our LEGAL WARRIORS. Where is our DAVID that can slay Goliath???????????? We even have an amendment in the BOR and can not get the courts to protect our RIGHT!!!!!!!!!!!

 

[ctdonath]

The unorganized militia doesn't count

Said what court when?
The "organized militia" IS the National Guard, which has been deemed part of the standing army.

The 2nd Amendment does not differentiate between "organized" and "unorganized". It recognizes that you can't have a "well-regulated militia" absent the ability of the people at large (equating to the "unorganized militia") to arm and train themselves. Should the "unorganized militia" be called up, there would be precious little time & equipment to prepare them properly; better they have prepared themselves.

The Founding Fathers obviously saw a direct connection between "a well-regulated militia" and "the people" at large, applying no limiting factors on what & who "shall not be infringed".

Even Emerson, which recognized the 2nd as an individual right, did not overturn the ban on NFA weapons or the ban of people under a restraining order from possessing firearms.

Emerson did not address NFA law specifically, it established principles from which - when addressed directly - would overturn NFA.

As for the restraining order: Emerson established that ONLY under VERY SPECIFIC CIRCUMSTANCES could the 2ndA be overridden - that requiring a particular person losing their rights for particular reasons addressed directly and clearly by a court.

Emerson voided the notion that the government could just generally infringe on rights without noting who or what specifically.

922(o) has been upheld in every case.

But has each of those cases established
- the defendant/plaintiff is a member of the US militia by act of Congress?
- the weapon in question is standard modern military issue?
- the gov't has in no way provided equipment or training to the defendant/plaintiff? (NG doesn't fly, as SCOTUS has established that as "standing army". The 2ndA speaks of "the people" generally.)
all points together?

The only way to overturn 922(o) would be to amend the constitution to alter or remove the commerce clause.

No, the 2ndA specifically states "...shall not be infringed". This limits the Commerce Clause, not the other way around.

 

[k_dawg]

I personally find it assinine as well as repugnant to claim the second amendment concerns the government's rights to have a "militia".

 

[glummer]

Money is a pretty reliable determination of who will win an election.

Only if it influences what the constituents think. The voters determine who will win.

If popular will is such a powerful tool, why do we have a war on drugs when something like 1/2 of the US population has used marijuana?

If marijuana was the only drug, there would be no W.O.D. And the people who use crack, or meth, do not represent the popular will.

Why are we about to send another 20,000 soldiers to Iraq when public sentiment is overwhelmingly against the war?

Because that popular sentiment does NOT extend to knowing what should be done about it.

Why are copyright terms so long, was there mass popular support for Mickey Mouse to remain under Disney ownership?

What has popular will got to do with copyrights? Most people could care less. If there SHOULD be some sort of popular opposition in the future, it would certainly have an effect on the legislators, and the law.

 

[Bartholomew Roberts]

Emerson is very fact specific, it leaves a lot of room for the Court to adopt either a looser or more restrictive view of individual rights. The key point in adopting an individual right interpretation though is that it acknowledges that at SOME level, there is a right to firearms protected by the Constitution that Congress may not regulate. What that level is will depend a lot on the opinion of the Court - and I bet they leave it fairly vague and open-ended like Emerson.

This is a step in the right direction; but getting SCOTUS to adopt an individual right isn't going to be the end of the fight by a long shot.

 

[ForeverArmed]

I personally find it assinine as well as repugnant to claim the second amendment concerns the government's rights to have a "militia".

Yes, it's asinine, but it's deliberately asinine.

Does it really make sense that a government would have to declare a right for its military force to bear arms?

And does it make sense that that right would be inserted among other rights in the Bill of Rights that are obviously directed toward individual liberties?

Do the writings of the Founders really suggest that they believed government should have absolute power -- which is the precisely the case when only the government is armed with combat-suitable weapons?

It takes an IQ of no more than 70 to understand the above. But those who are deliberately interpreting the Second Amendment out of existence (e.g., politicians and the courts) do understand those things. They merely pretend not to or convince themselves otherwise because their goal is to give government and its eager enforcers absolute power.

ALL "interpretation" of the Second Amendment is nothing more than a government power grab, and nothing is going to stop it, because Might Makes Right.

 

[SWMAN]

Alot of these arguments may be logical but as a practical matter, the law is whatever the courts say it is. Right now, it looks like the Federal Courts are holding to a collective right to gun ownership. From all the arguments presented on this forum of past Federal Court gun issues, any hope of unfettered regulation of guns in the US is wishful thinking. Looks like it comes down to how much federal gun regulation can Congress impose upon the citizens, and from what I've read it appears everything short of an outright, explicit ban. New York State law is a perfect example, for all practical purposes, of banning handguns or heavily restricting their availability to the average citizen in spite of NY's constitution.

 

[Werewolf]

Why are we about to send another 20,000 soldiers to Iraq when public sentiment is overwhelmingly against the war?

A thousand years or so ago the popular sentiment was that the world was flat and the sun and planets rotated around the earth. Folks that suggested otherwise were often rewarded for their forward thinking by being tied to a wooden stake surrounded by more wood which in honor of their status was lit on fire. Go figure.

One of the great failings of considering the will of the people is the notion that just because 100 people think something is right and one doesn't is that the one who doesn't is - well - wrong. In real life what the majority thinks very often has nothing to do with what is right, wrong or just.

 

[nobody_special]

The unorganized militia doesn't count

Said what court when?

From Hale 978 F.2d 1016:

'Technical' membership in a state militia (e.g., membership in an 'unorganized' state militia) or membership in a non-governmental military organization is not sufficient to satisfy the 'reasonable relationship' test. Oakes, 564 F.2d at 387. Membership in a hypothetical or 'sedentary' militia is likewise insufficient. See Warin, 530 F.2d 103.

This has been upheld by every federal court except the 5th circuit.

Emerson did not address NFA law specifically, it established principles from which - when addressed directly - would overturn NFA.

As for the restraining order: Emerson established that ONLY under VERY SPECIFIC CIRCUMSTANCES could the 2ndA be overridden - that requiring a particular person losing their rights for particular reasons addressed directly and clearly by a court.

Emerson voided the notion that the government could just generally infringe on rights without noting who or what specifically.

To address each of your points:
1. Emerson did not directly address NFA law. However, it did uphold reasonable restrictions on the individual right, and I find it likely that the court would have considered the NFA reasonable.

2. The "very specific circumstances" weren't all that specific, since it allowed a procedural restriction on a man's right to carry a Beretta pistol, without requiring a finding that he actually posed a danger. Think about it: Emerson upheld the 2nd amendment as an individual right, but then decided that the right could be taken away without a finding for cause.

3. I think the government has always had to be specific as to the "what" (i.e. what is illegal), but Emerson put no fundamental or specific limits on gun regulation. Furthermore, Emerson is only binding precedent in the 5th circuit.

No, the 2ndA specifically states "...shall not be infringed". This limits the Commerce Clause, not the other way around.

That's how it should work, but no federal court has ruled that way. Even Emerson allows for reasonable restrictions via the commerce clause. All the other federal courts say that the 2nd doesn't even apply to individuals at all.

You can't win this fight through legal arguments. If you want your 2nd amendment rights, the Constitution will have to be amended to restrict the commerce clause. Without such a change, the only hope is that the Supreme Court rules as per Emerson, and then there will be a legal battle over what constitutes a "reasonable restriction."


Werewolf and glummer, you missed the point. Bartholomew Roberts was arguing that popular opinion is a powerful force in politics and law; I was merely pointing out cases where politics and law went against popular opinion.

Does it really make sense that a government would have to declare a right for its military force to bear arms?

Unfortunately, it does. (Though I agree with everything else you wrote.) The Constitution does provide for a state controlled militia, so the government's argument that the 2nd applies to the national guard isn't completely insane... it's just backwards and wrong.

Emerson is very fact specific, it leaves a lot of room for the Court to adopt either a looser or more restrictive view of individual rights. The key point in adopting an individual right interpretation though is that it acknowledges that at SOME level, there is a right to firearms protected by the Constitution that Congress may not regulate.

Yes, but as I noted above the appellate decision still allowed for a man's 2nd amendment rights to be removed via a procedural ruling where there was no specific finding which provided a basis for that right to be taken away. I have a big problem with that.

My other problem with Emerson is that it'd be easy for a court to decide that any restriction on firearm ownership is "reasonable" and thus we're restricted to other types of arms. And then they ban knives... and then pointy sticks. The "slippery slope" argument may seem cliché, but it's true and this is a very real danger.

(I keep mentioning "pointy sticks" for a reason... if Congress can make marijuana plants illegal under the commerce clause, then they can also regulate trees and lumber... and thus pointy sticks.)

 

[ServiceSoon]

The commerce clause is a catch all. It can justify the control and regulation of everything under the sun or moon. There is no stopping it. It is tyranny at a level never seen before.

I am looking to the experienced leaders here at THR to announce what our options are.

 

[DKSuddeth]

voting with the cartridge box?

 

[nobody_special]

The commerce clause is a catch all. It can justify the control and regulation of everything under the sun or moon.

The real problem is that Raich ruled that the commerce clause applies in 3 ways, whereas it really should only apply to commercial transport of goods across state lines; and even then it might be better to limit the clause to only apply across the national borders. (Though one must think carefully, because it is useful to have things like uniform regulations for HAZMAT transport.)

voting with the cartridge box?

No! The moment people start "voting" with a cartridge is the moment we prove to the world that the gun-control people are right. This sort of talk may be good for expressing frustration at having our rights violated, but it's counterproductive. It can leave the impression that gun owners are reckless and dangerous.

By my count, 8 out of the 10 amendments in the Bill of Rights are regularly violated in this country. We should be outraged (and vocal) for all of these. But we should be more careful in expressing "forceful" opinions in this case. The 2nd amendment guarantees a fundamentally dangerous right. We don't want to frighten people who might otherwise be persuaded by rational argument to support the 2nd amendment.

I am looking to the experienced leaders here at THR to announce what our options are.

Well, I'm not an experienced leader at THR, but I can offer some suggestions while waiting for one of them to chime in.

Someone should make a "sticky" article in this forum which describes the current legal situation. Education is the easiest, and likely most effective, first step. (Feel free to borrow from my analysis in this thread if you like.)

Vote 3rd party. I don't even care which party. When I lived in California, I made a habit of voting for a Libertarian and a Green Party candidate in each election, though generally for some small local office. The erosion of rights in this country won't be reversed by Republicans or Democrats, unless we get a new breed of politicians who care more about principles than power. (And yes, I have some strongly liberal views regarding social and environmental politics, though my votes for the Green party were mostly an act of solidarity in principle rather than agreement in political fact.)

We could use a few new constitutional amendments. These ideas are very rough, and this is not realistic. However, limiting or removing the commerce clause would curtail many congressional abuses of power. Honestly, the amendments we have would be pretty good if only they were followed and Congress (and the Presidency) were not allowed to exceed their authority.

Education is the best tool, again. People need to expect more from their government, and then force it to live up to expectations. People need to better understand the meaning of freedom... that it also means freedom and rights for people who you don't like. The Constitution protects the rights of all people under our government; not just Christians, or whites, or the rich, or even US citizens. All people. Too many people don't understand this, which is probably half the reason we're in this mess. Too many people in this country try to force their morality on others. That's not what a free country is about.

Then there's the problem of emotional appeals... "there ought to be a law," "do it for the children," you have nothing to fear if you have nothing to hide." Those arguments are almost always wrong, and they can be overcome by calm and rational argument. Once again, education is the best solution.

It'd be nice if the Supreme Court would take up a 2nd amendment case, if only to clarify the situation. They haven't in 73 years. The Court has either been lax due to either laziness, or because they realize that taking a 2A case is a no-win scenario. I don't foresee it happening unless Congress passes a law restrictive enough that it forces the Court to pay attention to the difference between Emerson and all the other federal court decisions (such as a total ban and confiscation). The upside to that approach is that it would clarify the matter; the downside is that we might lose our guns and have severe domestic unrest.

If you really want to change things, run for office. But be warned, it's a rat race.

 

[ksnecktieman]

nobody?
"Someone should make a "sticky" article in this forum which describes the current legal situation."

Do you refer to our "living constitution? Or to our constitution as it is written, but is not enforced? Do you want to educate the masses, as to the meaning of the constitution, or tell the masses about the infringements they should live by?

If your opinion of the "current LEGAL situation" is different than my signature line, then I disagree.

The militia is a critical component of this case, but it is my belief that we have the RKBA independent of any militia duties.

 

[Koobuh]

"No! The moment people start "voting" with a cartridge is the moment we prove to the world that the gun-control people are right."

Exsqueeze me?
The use of force to change or remove a noisome government is the natural right of all peoples.
I don't care what the carebears think, that is the reason our nation even exists today.

The time for outrage has passed. It is time to start looking for solutions.
Keep working from the political end, nobody_special. Though, I suggest you put the progress being made through that process in one hand, and put your other hand out the window while it's raining, and see which hand fills up first.
We're going to need a complete paradigm shift in the electoral process in this country before the government starts giving us back our rights. Unfortunately, I don't see it happening.

Bringing attention to the dark significance of decisions like this should be the priority of everyone that has been outraged by them.

 

[DKSuddeth]

No! The moment people start "voting" with a cartridge is the moment we prove to the world that the gun-control people are right. This sort of talk may be good for expressing frustration at having our rights violated, but it's counterproductive. It can leave the impression that gun owners are reckless and dangerous.

By my count, 8 out of the 10 amendments in the Bill of Rights are regularly violated in this country. We should be outraged (and vocal) for all of these. But we should be more careful in expressing "forceful" opinions in this case. The 2nd amendment guarantees a fundamentally dangerous right. We don't want to frighten people who might otherwise be persuaded by rational argument to support the 2nd amendment.

news flash....people are already frightened of the 'dangerous right'. You're talking about people who are more concerned with breathing and working than they are about being responsible and free. They don't WANT the responsibility of being free....they can't handle it and so they want YOU/US to HAVE to submit to the government overlords, much like they have volunteered their rights and freedom to it. They already believe that gun owners are reckless and dangerous, because anyone that would actually resort to guns and violence to protect rights shouldn't actually have those guns. We're also talking about people that KNOW, without a doubt, that the 2nd Amendment is about an individual right but are completely satisfied redefining it as a government right by believing that tyranny could never happen here, that government is their friend, their protector, their benevolent parent. These people do not want freedom, they want supervision and are quite willing to implement the tools of government force to take your freedom away.