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SHOWDOWN AT THE SUPREME COURT: THE 2nd AMENDMENT (posted 6-1-02) Forget the O.K. Corral; there's a bigger showdown brewing in the U.S. Supreme Court about the 2nd amendment. Does the 2nd amendment mean an individual, including those not actively a member of any militia or in active military service or training, has the right to privately possess and bear firearms? The Fifth Circuit said yes, and the U.S. Department of Justice is asking the Super Supremes to make the same ruling. Click the headline to read excerpts from the United States' pleadings, including the controversial memorandum by Attorney General John Ashcroft. Emerson v. United States, Case No. 01-8780, U.S Supreme Court; Haney v. United States, Case No. 01-8272, United States Supreme Court. Since several of this firm's business owner clients are avid hunters, we closely follow 2nd amendment cases such as these, about the right to "keep and bear arms." On August 28, 1998, Sacha Emerson filed for divorce from Dr. Timothy Joe Emerson, in Tom Green County, Texas. On September 4, 1998, Judge Sutton entered "temporary orders" and a "temporary restraining order" against Dr. Emerson. It was a boilerplate domestic relations injunctive order with no particularized findings. On October 10, 1998, Dr. Emerson purchased a Beretta pistol, in San Angelo, Texas, from a licensed firearms dealer, while he was still subject to this order. In doing so, he allegedly violated a little known federal law prohibiting persons under such a court order from shipping, transporting or possessing any firearm or ammunition. This statute may be found at 18 U.S.C. Section 922(g)(8). How did his soon-to-be ex-wife find out about this gun? It seems that on November 16, 1998, Mrs. Emerson and daughter visited Dr. Emerson's office to retrieve an insurance payment. During the meeting, the doctor and his soon-to-be-ex got into an argument. He reached into his desk drawer, pulled out the Beretta, and told her to leave. Not to be intimidated, the future ex sought to enter a back room to get their daughter's shoes, and when she did, he cocked the pistol and pointed it right at her. Don't you just love divorce? Dr. Emerson was thus charged with violating this statute, which is a criminal statute. Part of his defense is that this statute is unconstitutional because he has the right to possess firearms under the 2nd amendment to the U.S. Constitution, which states "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 5th Circuit noted three different basic interpretations or models of the 2nd amendment. The first model is that the 2nd amendment does not apply to individuals, but rather it merely recognizes the right of a state to arm its militia. This is the argument the U.S. government made before the trial court. Keep this in mind because by the time this case got to the Super Supremes, the government radically changed its position. The second model is that the 2nd amendment recognizes some limited species of individual right, but it can only be exercised by members of a functioning, organized state militia who bear the arms while and as part of actively participating in the organized militia's activities. In the 5th Circuit Court of Appeals, the U.S. government abandoned the first model and advanced this second model. The third model is simply that the Second Amendment recognizes the right of individuals to keep and bear arms. The 5th Circuit Court of Appeals acknowledged that no courts of appeals had adopted this model, but that it did have considerable academic endorsement. This was, of course, Dr. Emerson's argument in the district court, and the district court agreed with him, and threw out the charges against him. The 5th Circuit bravely went where no court has gone before. It dove into the actual wording of the 2nd amendment and dissected it. It concluded that the term " the people" meant exactly that, individual Americans. The term "bear arms" refers generally to the carrying or wearing of arms. The term "keep.....arms" means that an individual's right to possess arms is not limited to active military service or being in a select militia like the National Guard. Taken separately, the phrase "the right of the people to keep and bear Arms, shall not be infringed" is not really confusing whatsoever. It is the preamble to this sentence that clouds its meaning. "[a] well regulated Militia, being necessary to the security of a free State..." And so the court turned to the effect of this preamble and concluded that it means the purpose of granting individuals the unassailable right to possess firearms is to enable, promote and further the existence, continuation and effectiveness of that well regulated militia which is necessary to the security of a free state. It does not limit the individual right, it explains why the right is granted. Finally, the court noted that, historically, the term "militia" referred to a body of people generally possessed of arms which they knew how to use, rather than some formal military group separate and distinct from the people at large. And so the case proceeded to the Super Supremes. Ted Olsen, the attorney who represented George W. Bush before the Super Supremes in the election contest cases, filed a brief for the U. S. Government. Remember that in the district court the U.S. argued the first model. Then, in the Court of Appeals, the U.S. argued the second model. Now, in the U.S. Supreme Court, the U.S. is asking the Super Supremes to adopt the third model, the same model adopted now by the district court and 5th Circuit. Attached to Mr. Olsen's brief is a memo dated May, 2002, from John Ashcroft in his capacity as U.S. Attorney General. In that memo, Mr. Ashcroft states: Emerson is also noteworthy because, in upholding [18 U.S.C. 922(g)(8)], the Fifth Circuit undertook a scholarly and comprehensive review of the pertinent legal materials and specifically affirmed that the Second Amendment "protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms...."...In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment......Justice is best achieved, not by making any available argument that might win a case, but by vigorously enforcing federal law in a manner that heeds the commands of the Constitution. One small step for rationality, one giant leap for common sense. Close
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