Not all the news is good in Emerson

[Tomas]

This is from www.saf.org

Let's not break our arms patting ourselves on the back just yet.

Tom

__________________________________________

THE "GOOD" AND "BAD" OF THE
EMERSON APPEAL ORAL ARGUMENTS

On Tuesday, June 13th, 2000, a three-judge panel heard oral arguments for the U.S. v. Emerson case. The
Judges asked a great deal of tough questions for both parties and seemed to be quite familiar with all of the
subjects this case involves - including the Second Amendment. The three-judge panel includes Judge
William L. Garwood (Reagan), Judge Harold R. DeMoss, Jr. (Bush), and Judge Robert M.
Parker (Clinton). The following is a summary of the arguments discussed and the judges' reactions.
Please remember that oral arguments do not necessarily indicate how the judge(s) may rule, only the line of
questioning they chose on that particular day.

For a more detailed summary, listen to Tom Greshem's GunTalk Radio Show on June
18th from 2 PM to 5 PM Eastern Time on the Talk America Radio Network.

GunTalk is heard on over 110 stations coast to coast. If there is not an affiliate in your area, you can listen
on-line at http://www.talkamerica.com or at Yahoo Broadcast at http://www.broadcast.com by selecting
radio; then talk; then Talk1.

Second Amendment - Many interesting comments.

The attorney for the federal government argued that there was absolutely NO right of the individual to keep
and bear arms. The Feds went so far as to claim that membership in the National Guard was not enough to
privately possess any firearms, including militia-type weapons. Vice-President Al Gore, if elected
President this November, would continue to hold the Second Amendment as null and void.

Please read the following chilling exchanges:

Judge Garwood: "You are saying that the Second Amendment is consistent with a position
that you can take guns away from the public? You can restrict ownership of rifles, pistols
and shotguns from all people? Is that the position of the United States?"

Meteja (attorney for the government): "Yes"

Judge Garwood was having none of that.

Garwood: "Is it the position of the United States that persons who are not in the National
Guard are afforded no protections under the Second Amendment?"

Meteja: "Exactly."

Meteja then said that even membership in the National Guard isn't enough to protect the private ownership
of a firearm. It wouldn't protect the guns owned at the home of someone in the National Guard.

Garwood: "Membership in the National Guard isn't enough? What else is needed?"

Meteja: "The weapon in question must be used IN the National Guard."

This extreme position is designed specifically to try to kill the true meaning of the Second Amendment with
a single irresponsible ruling.

Judge Garwood also challenged the Gov. on their interpretation of U.S. v. Miller (1939), noting that it
appears to uphold an individual right. Garwood also pointed to the current militia law stating that all
able-bodied males between certain ages are part of the militia. See current Militia act here.

Judge DeMoss noted that Emerson's Beretta 92 is the standard U.S. military issue sidearm. Judge DeMoss
also had a great comment for the Government Attorney:

"You shouldn't let it bother your sleep that Judge Garwood (the senior judge) and I,
between us, own enough guns to start a revolution in most South American countries."

Judge Parker was surprised that the Gov. said this case wasn't about the Second Amendment's individual
right, and responded to the affect that the district court sure thought it was. In addition, Judge Parker
questioned why the Gov. sought the "collective" right interpretation when the scope of the constitutional
right didn't matter if that right could be destroyed with a simple federal law.


Form 4473 - Purchase v. Possess

One of the issues raised in the Citizens Committee Amicus (friend of the court) brief was that Dr. Emerson
was not warned about the potential felony penalties awaiting him for continuing to own a firearm, thus
violating his Fifth Amendment right of due process. The Gov. had claimed that the BATF Form 4473
provided notice that it was illegal to "possess" a firearm when subject to a civil divorce court restraining
order.

In fact, the form only discusses the illegality of "purchasing" a new firearm, but NOTHING about the
necessity of surrendering previously legally owned firearms. There was a debate on this issue between
judges and Mr. Cooper from the Alabama Attorney General's Office, who argued effectively in support of
the individual right to keep and bear arms under the Second Amendment.

Interstate Commerce - U.S. v. Lopez and U.S. v. Morrison Revisited

All three of the judges seriously questioned the Feds ability to consider mere gun possession as an
interstate commerce issue. This questioning supports the Supreme Court's decisions in U.S. v. Lopez and
the the recent U.S. v. Morrison case. In fact, both cases were cited by judges.

One of the best exchanges on interstate commerce was between Judge DeMoss and the Gov. Attorney:

DeMoss: "I have a 16 gauge shotgun in my closet at home. I have a 20-gauge shotgun. I
also have a 30-caliber rifle at home. Are you saying these are "in or affecting interstate
commerce?

Meteja (government lawyer): "Yes"

Implied Threat - the big risk to Emerson and Gun Rights.

Here is the bad news. All of the judges were very interested about whether a possible "implied threat" by
Dr. Emerson [toward others] could be enough to uphold the law as constitutional [or at least on some
grounds]. This could be used to violate the Second Amendment on "he said, she said" testimony with no
burden of proof on the accuser. Or even worse, a judge could just issue restraining orders in ALL divorce
cases in his or her courtroom thus eliminating Second Amendment rights without even an "implied" threat
by anyone.

Once again, the real issue is that NO credible or even "implied" threat is required under
this obscure, technical law that violates the Second Amendment civil right. Many
attorneys and judges remain unaware of this rarely-used law and therefore they cannot
warn people of the potential unknowing ensnarement created by this federal felony
statute.

Mr. Cooper tried to dissuade the judges from this line of thinking, by citing that the alleged threat was
made only against the boyfriend, not a domestic partner and therefore not part of the law. Judge Parker did
not like the idea of allowing "implied threats" against some people but not others. Cooper also argued that
there was no implied threat because Dr. Emerson's wife agreed to visitation, indicating that she did not see
a looming threat at that time.

Another potential problem is that nobody informed the judges that the issue is not about Dr. Emerson and
what may or may not have occurred in this one particular case, but the fact that there are between 800,000
to 1 million divorces each year in this country. This means that there are about 1.6 - 2.0 million
opportunities each year for a restraining order to be issued against an individual which
then prevents the civil right of self-defense through the elimination of the Second
Amendment right to keep and bear arms without due process.

A decision is expect from anytime between now and the end of the year. Stay tuned for more updates as
they are made available. Several news articles will be posted in the next week or two.

[ctdonath]

If they're fair judges, they'll strongly consider both sides, and ask questions that make each side very nervous. Yes, the law was written precisely to deal with people like Emerson, so the judges have to evaluate the issue from that view.

Sure, Emerson did make threats - we already have laws against that. A restraining order had been filed. Etc. There's still no sane reason why one's major rights can be elminated with zero fanfare boilerplate on the "she said" of a distraught spouse.

The law apparently violates:
- 2nd Amendment
- Due process
- Declaration of charges - and consequences
- Jury trial
- Prior notice
and probably enough other things to guarantee the law will be deemed invalid.

I'm not worried. The judges have to ask tough questions of both sides, and the gov't side's strongest argument is that Emerson must have read some fine print of debatable relevance on a generally unrelated form five years prior.

[proximo]

"Sure, Emerson did make threats - we already have laws against that. A restraining order had been filed."

Careful... there is no proof he made any threat. Its all "he said, she said". For all we know, his wife's lawyer coached her to say this to improve her position in the divorce. Not only that, the restraining order was automaticaly granted as a result of the divorce being filed. That's the whole point of Judge Cumming's ruling. You need to read the ruling before commenting on it.

[This message has been edited by proximo (edited June 18, 2000).]

[ctdonath]

I understand that, did read the ruling, and still stand by my comment. There are valid laws against making such threats, and it's up to a judge to decide whether he violated those laws (as you observe, it's "he said, she said"). IIRC, Emerson did not refute those charges (yes, no proof and no conviction). Yes, the problem is that a boilerplate rights-violating restraining order was automatically applied without adequate description or due process...that's a separate issue from whether he's guilty of making threats. Unfortunately, the gov't wants/needs to obfuscate the issue, as obfuscation is their only chance at winning an appeal (other than just making Emerson and his lawyers vanish).