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Old March 11, 2001, 01:27 AM   #1
Adventurer_96
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I'm just wondering, it seems like the tax-basis for this key piece of legislation is open for attack, particularly given the current makeup of the court.

Have I missed something? Can we do something at the root of this problem?

La perte des armes est la fin de la liberte.
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Old March 11, 2001, 01:46 AM   #2
Jim March
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You haven't missed anything.

Miller was a bad joke. The prosecution lied through their teeth; short shotguns little different from Mr. Miller's had seen military duty in WW1.

US vs. Emerson is a direct step in the direction you're looking to go - unless the 5th Circuit seriously mucks up the decision by Judge Cummings, that case is about the RKBA being an "individual right".

That's the first step. There's two more key steps past that:

1) What sort of gun control can withstand the "strict scrutiny" that a court must apply to a violation of a civil right.

2) Do the states have to honor the RKBA, or is it only a limit on the Feds? For an overview of the most advanced thinking in that area, see also my review of law professor Stephen Halbrook's "That Every Man Be Armed":
http://www.bladeforums.com/ubb/Forum11/HTML/000794.html

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Old March 11, 2001, 07:32 AM   #3
oberkommando
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Jim dont it seem like emerson is really draggin out?
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Old March 11, 2001, 08:13 AM   #4
Brett Bellmore
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Really dragging out? It was really dragging out three months ago! By now we ought to file a missing case police report!

Seriously, I'm wondering if the 5th circuit is waiting for Emerson to moot the case by dying of old age... Or more realisticly, waiting for the Bush administration to order the appeal dropped.

Can we get photos of these judges? I've got a great idea for a poster: The faces of the 5th circuit judges on milk cartons!
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Old March 11, 2001, 12:48 PM   #5
bookkie
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I know how you feel Bret..... so much for a speedy trial... I'd hate to be Emerson with this hanging over my head for the rest of my life. Not knowing if they will ever make a ruling.

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Old March 11, 2001, 07:12 PM   #6
Jim March
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Look on the bright side...

Right now, we *think* a good Emerson decision by the 5th Circuit would be backed by the US Supremes on a 5/4 split in our favor. And even if the 5th made such a ruling tomorrow first thing in the morning, it's too late to get it on this year's US Supreme Court docket.

So, if the 5th Circuit delays for about six months more, that'd be perfect.

Huh? Ya, think a sec: we want at least one of the current Justices to retire and Bush to get a replacement in there BEFORE the 5th makes it obvious that there's gonna be a major RKBA case hit the Supremes. Once the 5th Circuit rules, esp. if it's wildly in our favor like we hope and suspect, any Bush nominee for the Supremes is going to get scrutinized in terms of RKBA reliability...because it'll be obvious Emerson is for "all the marbles".

Just hang tight, y'all...it's all falling into place just like LaPierre figured, that crafty SOB .

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Old March 11, 2001, 10:39 PM   #7
TheBluesMan
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That's a very good point, Jim. I hadn't considered that aspect before. Right now the Emerson case is probably not even on the radar screens of most Dem. legislators.

IMO, it would be a terrible loss if Bush were to drop the appeal now. It would then just let stand Judge Sam Cummin's ruling which wouldn't have any nationwide effect on the RKBA battle. Believe it or not, it may be in our best interest for Bush to keep pushing for the anti's side!

Whaddaya think?
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Old March 12, 2001, 12:27 AM   #8
Cosmoline
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Appeals in most state court systems, let alone the U.S. federal Courts of Appeal, take a LONG time. Years and years sometimes. Even after the 8th gets around to hearing it, the chances of getting cert are one in a million. And even if the Court decides the Second does grant an individual right, no right is absolute. They could strip it bare in the name of "reasonable restrictions."
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Old March 12, 2001, 04:23 AM   #9
Jim March
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Bluesman, the NRA now has a straight line into both the defense and offense in the Emerson case. That's the freakin' GENIUS behind the NRA's handling of the recent election.

Ashcroft is on our side. If he needs to keep pushing the Clinton adminstration view that shocked the 5th Circuit during verbal arguments, he will.

It's a perfect setup.

GRH has a point, in that even a basic civil right can be restricted if a strong need can be shown. But look at how many gun control laws have been passed with no supporting evidence that it aids public safety in the slightest. Picture the courts subjecting every single one of them to scrutiny on that basis...remember, the Feds recently had to admit that Brady hasn't done squat.

It's all going like clockwork, guys.

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Old March 12, 2001, 04:50 AM   #10
iso1
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Hmm.

Funny, I thought I lived in America, where Rights ARE absolute....

Musta been a dream....
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Old March 12, 2001, 08:04 AM   #11
Kaboom
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Ladies and Gentlemen;
If the interpetation comes about as it should, given the wording of the 2nd. it will be a long time coming. There are entirely too many dollars involved to have a ruling. If there is a ruling stating all restructions are unconstitutional, look at all the litigation that becomes moot. Look at all the organizations that will no longer serve a purpose. It really seems that justice is swiftest when there is no money involved. There is a large cash cow to be milked, and remember, the judges are all lawyers. They have no reason to rule because it isn't a case of desperate need. If it happens in our lifetimes I'll be surprised.
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Old March 12, 2001, 11:11 AM   #12
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Yes there is ALOT of money involved! Yes they are "Lawyers". Yes, there would be alot of shtf if they ruled that the Second is am individual right! IN the end however you can NOT have "the people", mean one thing in some amendments, and something else in another, simply since "they" dont like one of the amendments.

Oh yeah if NFA 1934 was ruled Unconstitutional based on the 2nd what would that do to the rest of the Fed Laws??? What about State/Local Laws???
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Old March 12, 2001, 12:57 PM   #13
madison46
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Just a note on Emerson and the 5th.

I like the Judge on Milk Carton idea. They are taking a long time.

Anyway, and someone can correct me, but after this ruling, the case could STILL go before the full 5th Cir. - not just a 3 judge panel. I don't know how many judges that is, however.

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Old March 12, 2001, 02:52 PM   #14
Jim March
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Re: going before the full 5th Circuit:

Yep, it could happen...if Ashcroft wants it to! The 5th is the most conservative circuit in the US, if we get a good ruling out of the current 3-judge panel within the 5th (who are a really good bunch from our point of view) then it's highly unlikely those three judges would be overruled by the whole circuit.

It'll go before the whole 5th IF Bush and Ashcroft think they need more time to get new US Supremes in.

Re: "absolute rights":

Free speech is one of the most fundamental rights imaginable, and there's limits often placed on it for public safety reasons..."yelling fire in a crowded theater" is the classic example, and in wartime there's information that could harm national security that gets blocked.

If the 2A is a personal, individual right, then if the gov't could *prove* an *overwhelming* public safety need for a particular gun control law, then that law might stand. And there's some that probably will, such as the rules that disarm convicted felons, esp. if the crime involved violence.

But think about the rules that CANNOT withstand such "scrutiny". It's a looooooooong list .

Re: "will such a ruling apply to the states":

Mixed bag. Some states have an RKBA provision in their state constitutions, and will see an immediate benefit. Others such as California will need another "follow-up" case to drive home the view that the 14th Amendment transfered a responsibility to honor the RKBA down to the states. My own case is a possible contender, but I doubt it'll go that far - my Sheriff has done stuff in CCW issuance that's so obviously screwed up, we're not going to have to rely on the RKBA arguments we've got in there as a "last ditch backup".

The whole concept of "selective incorporation" is fundamentally hosed from it's racist inception by the Supremes circa 1930ish. If you really want to understand the issues, go get a copy of Halbrook's "That Every Man Be Armed" - it's $20 in a new large-paper edition, the ordering URL is within the review I wrote of it:
http://www.bladeforums.com/ubb/Forum11/HTML/000794.html

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Equal Rights for CCW Home Page
http://www.ninehundred.com/~equalccw
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Old March 12, 2001, 03:04 PM   #15
madison46
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Jim,

Thanks. Maybe those 3 judges are waiting for O'conner to retire..:-| I like O'Conner, but am very unsure of her 2nd position. I've heard that Orrin Hatch could be a possible nominee as could Gonzales (sp) A Bush appointee to the TX SC who I think is on the WH staff now vetting Federal Judges.

Hatch for O'Conner would be great for the 2nd, but bad for the 4th. Not sure where Gonzales would fall on the 2nd.

Can Bork be renominated??

(rant on)

Why is it so hard to live to the Bill of Rights? 1st is under attack from McCain-Fiengold, the 2nd from the Democrats, the 4th and 5th from the "War on Drugs".....If they just stayed to the BoR, we'd solve a lot of problems.

(rant off)
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Old March 12, 2001, 09:39 PM   #16
Dead
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Can I be on the SC

I know I would "read" every law "correctly", and would NOT be in any "party"
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Old March 13, 2001, 10:03 AM   #17
Danger Dave
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Been there, done that...

There was a case about 10 yrs. ago. I wish I could remember the name, but it was a Class III dealer in Georgia. I think the S.C. refused to hear it, but it got all the way up there.

Basically, the court ruled that:
1) The government could not prohibit the manufacture of any type of firearm
2) Just because it could be manufactured doesn't mean that ATF has to issue permits for it.

So, there you have it. Since the issuance of permits is up to the ATF, and they don't have to ever issue a permit, you can't get one.
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Old March 13, 2001, 06:27 PM   #18
Jim March
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Was the GA case based on "rule of law" issues, or equal protection, or a "pure RKBA argument" similar to Emerson?

Makes a huge difference. It's not uncommon to challenge a law on one basis, fail, and try again on another. If Emerson wins at the 5th Circuit, it'll put the 5th and 9th in 180degree opposition to each other - did that happen back in the GA case? I rather doubt it...

Jim
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