Get Your Emerson Fix Here
Updated 11/04/02
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For those who just can't get enough Emerson information, and have somehow read everything else posted by SAF & CCRKBA on the case, here is the very latest news.
E-mail your Emerson questions and Join the Emerson E-mail List here!
HOT: EMERSON WAS CONVICTED AT TRIAL IN TEXAS FOLLOWING A DENIAL OF HIS APPEAL BY THE U.S. SUPREME COURT. MOTIONS FOR JUDGMENT OF ACQUITTAL WERE FILED AND APPEALS ARE EXPECTED! ! !
HOT: EMERSON DEFENSE FUND CONTINUES! ! ! (8/05/02)
1. Media Coverage of New Trial.
Abilene Reporter-News (10/08/02)
Lubbock Avalanche-Journal (10/08/02)
San Angelo Standard-Times (8/03/02)
Abline Reporter-News (8/03/02)ASHCROFT'S MEMO: EMERSON-SECOND AMENDMENT JUSTICE DEPARTMENT MEMO! ! ! (Posted 11/04/02)
EMERSON U.S. SUPREME COURT INFORMATION! ! !
1. Petition for Writ of Certiorari.
2. A. Government's Response Admitting that the Second Amendment is an individual right. PDF format. REQUIRES ACROBAT READER to Read PDF files.
Download free Acrobat Reader Now!B. Government Admits "individual right" again in the Haney Case Response here. PDF format.
3. View latest Emerson Media Coverage here!
4. Status of Case (Showing Cert. Denied) from the U.S. Supreme Court Website.
5. Stephen P. Halbrook Response to VPC letter.
6. VPC Anti-gun letter to DOJ.
In other Supreme Court news, the highest court overturned a Fifth Circuit case on allowing felons to restore their right to own a gun. The case is Bean v. U.S. (B.A.T.F!).
Click here for the Bean Case page.
Emerson's two appeals for rehearing in the Fifth Circuit were declined, prompting the Supreme Court Appeal.
1. 3-Judge Panel (Same 3 judges)
2. En Banc (All active 5th Circuit judges. Garwood has option to join.)
NEW: A Primer on the Constitutional Right to Keep and Bear Arms
by Nelson Lund, J.D., Ph.D. (Virginia Institute, June 2002)SAF LAUNCHES EMERSON DEFENSE FUND AS DR. EMERSON IS APPEALING! ! ! (11/07/01)
New Ninth Circuit Case shows why we need a U.S. Supreme Court decision on the Second Amendment. Previous Appeals Court decisions bind District Courts and Later three Judge Panels in that Circuit. Read Page 10456.
NEW: United States v. Hinostroza, 01-10482.
NEW: News Article on Hinostroza Decision. (7/24/01)
Flashback: Anti-Emerson Press Conference on C-SPAN (8/29/01)
10/25/01: Emerson's new attorneys are David Guinn and Aaron Clements. Guinn argued the original Emerson case before Judge Cummings in the district court and Clements was the attorney for the SAF amicus brief in the Emerson appeal and he also now works with Guinn.
10/16/01: The decision is finally in. The majority (Garwood wrote, DeMoss signed onto it) found the Second Amendment is an individual right, but reversed and remanded the Emerson case. As expected, Parker in a minority opinion did not want to support the Second Amendment.
NEW! A Wrong Turn on Second Amendment Rights. (Letter to Editor, Law.com 1/21/02)
NEW! Emerson ruling is a mixed bag for gun rights. (Buffalo News 1/06/02)
NEW! SUPREME COURT Q & A: Second Amendment, Court History and Recent Cases. (New York Times 1/02/02)
NEW! Sheldon Richman: A mixed victory for gun rights. (Minneapolis Star Tribune 12/28/01)
NEW! Whose right on bearing arms? Second Amendment means what it says. (Glenn Harlan Reynolds 11/25/01)
NEW! Decision in gun owner's favor fans 2nd Amendment debate: Appellate court affirms individual right of possession (Copley News Service 11/18/01)
NEW! Stephen P. Halbrook, Ph.D. Responds to Prof. Dorf on Emerson (11/20/01)
NEW! Bummer for Sarah Brady: It's been a great year for gun rights. Mentions Emerson case. (Wall Street Journal 11/15/01)
NEW! Armed Against Terrorism by George F. Will. Interesting column as he has written on the other side of the Second Amendment issue in the past! (11/04/01)
NEW! Terrorists Attacked Gun Control Movement. Fox News Article mentions Emerson! (11/04/01)
NEW! GUNS AND THE CONSTITUTION: Telling The Right Second Amendment Story by Akhil & Vikram Amar. Supports individual right under Second Amendment ONLY because of the Fourteenth Amendment. This would INCORPORATE the Second Amendment as binding on the states! (11/02/01)
NEW! Collective Rights View's Michael Dorf on Emerson (10/31/01)
NEW! David Kopel & Glenn Reynolds on Emerson (10/25/01)
More News Coverage of decision! ! (Updated 5/10/02)
1. READ THE 5th CIRCUIT DECISION HERE! ! !
2. CCRKBA RELEASE: FIFTH CIRCUIT AFFIRMS GUN RIGHTS, SAYS SECOND AMENDMENT IS FOR INDIVIDUALS! ! !
3.a. SAF RELEASE: APPEALS COURT CONFIRMS THAT SECOND AMENDMENT PROTECTS AN INDIVIDUAL RIGHT! ! !
b. One of SAF's Authorities, David Young, was cited 103 times or so in the Appeals court decision!!!!
1. SAF Emerson Brief!
2. SAF letter from David Young listed in SAF Brief!
3. Article on David Young on KeepAndBearArms.com!4. Selected Emerson Quotes from Keepandbeararms.com
New! 5. More Emerson Coverage from KeepAndBearArms.com
6. One Attorneys take on Ruling
New! 7. Another Attorney's thoughts, including on Judge Parker!
8. Violence Policy Center's Spin Release on their Loss!
9. The Potomac Institute's take on Emerson, claiming it means almost nothing!
10. Brady/Handgun Contol "Disappointed" in a more honest release about the Emerson decision!
E-mail your Emerson questions and Join the Emerson E-mail List here!
Item 1: Media Researching "Expert" from anti-gun Emerson briefs, and reveiling his findings as both biased and false. Front Page news in The Boston Globe, 9/11/01; also in The National Review's October 15 issue started the ball rolling. And now his own Emery University is raising questions! ! ! !A. Disarming America, Part II: Why Won't Bellesiles Seriously Respond to His Critics? (National Review 11/26/01)
B. Article on how Bellesiles really said little in his response to critics. (Boston Globe 11/13/01)
C. Bellesiles complains about "hateful" attacks, but doesn't really respond with much information. (Organization of American Historians 11/13/01)
D. HOT! ! ! Gun Control Book Based on Faulty Data (Fox News 10/10/01)
E. Disarming America: One of the worst cases of academic irresponsibility in memory. (National Review 09/14/01 for October 1 Issue)
F. New doubts about gun historian: Research to receive hard critique today (Boston Globe's Front Page 09/11/01)
G. MORE RESPONSES TO BELLESILES! ! ! Even his own Emery University is raising questions! ! ! (Updated 10/04/01)
Item 2: A. "There Must Be a Limit" A great article on Emerson and other federal cases by Kenneth Barnes, a member of our Emerson E-mail List and has helped research this important case. His work can be found at http://www.faqs.org by visiting the Newsgroup Talk (Part of the Big Eight on the page) and then go to talk.politics.guns for more information. Have fun there and also enjoy his sneak preview article. (08/22/01)
B. Ken Barnes Also Found that Justice Kennedy discussed the Second Amendment in December, 1999 & the tape is available on C-SPAN! ! ! ! America & the Courts (8/25/01) 1 hour. (08/27/01)
C. Partial Transcript of Justice Kennedy (from Ken Barnes). (08/28/01)
Item 3: The Strange Case of United States v. Miller by Dr. Michael S. Brown. Good background. See links at bottom of page.A. Guns in Court. Discussing what U.S. v. Miller really said. From a Item below. (05/30/01)
B. One Summary of Miller Documents.
Item 4: The gun-banning Violence Policy Center is having fits over Attorney General Ashcroft's position on the Second Amendment, especially now that his letter is submitted to the Fifth Circuit as evidence on behalf of Dr. Emerson. Full of emotion, derogatory language, and ad hominem attacks; this "study" features bashing and lies about Dr. Emerson, as well as shrill warnings of doom and repeated shouts of "U.S. v. Miller!" within pleas to their anti-self-defense allies to allow [faulty] readings of previous court decisions to carry the day (legally known as stare decisis). But if stare decisis ruled courts unchallenged, slavery would still be legal and abortions illegal. This latest study reads like they know they are losing! A good response to VPC errors is listed at F.A. L.A. Times article on AG Ashcroft & VPC. (07/26/01)
B. VPC Study Press Release. (07/25/01)
C. VPC Study Summary. (07/25/01)
D. VPC Study in HTML. (07/25/01)
E. VPC Study in PDF. (07/25/01)
F. Halbrook Responds to VPC "Study." (08/20/01)
G. VPC upset that DOJ doesn't like their "Study." (8/09/01)
H. Related Item: Another Gun-Ban Groups is trying to Block Ashcroft's Letter. (8/31/01)
Item 5: Sign of things to come?
A. Bill Mateja, the assistant U.S. attorney who argued that there is NO INDIVIDUAL RIGHT under the Second Amendment, has been denied advancement to a higher position in the U.S. Attorney's Office. This information is included in a balanced article on AG Ashcroft's position on the Second Amendment in the Kansas City Star (07/20/01)
Neal Knox had uncovered that Mateja was being considered for a U.S. Attorney position under the Bush Administration.
Knox's Report (Click on the link and then scroll about halfway down that page)
The following documents provide more information about William Mateja v. Second Amendment:
Proof Clinton/Reno/Gore's Justice Dep't Claimed Americans Have No Right to Keep and Bear Arms! ! ! !
Summary of Appeals Court Oral Arguments - The good and the bad.
B. In a narrow legal victory for gun owners, the federal Lautenberg Law barring all gun ownership by those convicted of so-called "domestic violence" misdemeanors was limited to fewer crimes in the 5th Circuit. Judge Garwood (part of the Emerson 3-judge panel) wrote the unanimous opinion for the 3-judge panel in U.S. v. White, reversing and remanding a federal conviction for possessing a firearm after the defendant had previously been convicted of several misdemeanors. The judges only found that the prior convictions did not have the required "elements" to be considered "domestic violence" misdemeanors and could not address the Second, Fifth, Ninth & Tenth Amendments or exceeding Commerce Clause powers issues since they were not brought up in the original trial. Maybe Emerson will be the case to tackle the Second & Fifth Amendment issues! Thanks to David Scott of Palm Beach, FL for bringing this case to our attention.
C. In a win for fairness, people who have "lost all rights to possess firearms" due to a felony conviction now have hope of restoration of rights under certain circumstances in the 5th Circuit. A 3-judge panel unanimously affirmed a lower court's ruling where an individual had his rights restored by the court because the BATF isn't allowed to perform any restoration, even though there is a law for it. While Judge Politz wrote the opinion in Bean v. B.A.T.F. (USA), Judge DeMoss (part of the Emerson 3-judge panel) signed on to the same opinion. Mr. Bean had inadvertently crossed the border to Mexico with 200 rounds of shotgun ammunition and was convicted of a felony for ammo possession. This conviction barred any gun ownership. Since Congress has failed to fund the BATF since 1993 for restoring firearms' rights, Mr. Bean turned to the courts and he won. A great decision. But do good things come in fours? Is Emerson next? Hopefully soon.
D. Another case has been put on hold in the Fifth Circuit pending an Emerson decision. Most of you are aware of the U.S. v. Spruill decision that has been held up until after the Emerson case is decided in the Fifth by earlier postings. Another less followed case is U.S. v. Henry, which we are now posting information on. Mr. Henry was found a credible threat and had a restraining order issued against him. Then he was found in possession of a firearm. It appears that based on these three cases in the Fifth Circuit, that the courts may, at best, "split the baby" and MAY uphold Emerson while upholding convictions in Spruill and Henry.
E. In the Ninth Circuit, a surprise victory for restoration of Firearms Rights along with all other civil rights. A three-judge panel unanimously ruled that unless a person's firearms rights are "expressly" not reinstated, the person gets this right back under federal law, even if not under that state's law. Mr. Laskie was convicted in 1982 for felony possession of a controlled substance. After sentence and probation, he was "honorably discharged" and his "guilty" plea was changed to "not guilty" with the conviction set aside. Therefore, under federal law, he could not be convicted as a felon in possession of a firearm, even if he could be prosecuted under state law.
F. In the Fifth Circuit, another case mirroring the Ninth Circuit upholds the restoration of Firearms Rights. A three-judge panel unanimously ruled that unless a person's firearms rights are "expressly" not restored, the person gets this right back under federal law, even if he or she can be prosecuted under state law. Mr. Osborne's conviction for felon in possession of ammunition was overturned.
G. Again, the Fifth Circuit upholds the restoration of Firearms Rights. A three-judge panel unanimously ruled that Mr. Fix had could not be prosecuted under the federal felon in possession statute since his rights were previously restored, including firearms rights.
H. Unanimous three-judge panel reluctantly upheld a federal conviction for armed robbery while questioning whether such a law was constitutional under interstate commerce grounds. An en banc hearing was requested and is likely. While Mr. McFarland's conviction was upheld, all three judges, including Emerson panelists Garwood and DeMoss, all questioned the validity of the Hobbs Act following the U.S. Supreme Court decisions in UNITED STATES v. MORRISON et al. and JONES v. UNITED STATES which have expanded the Supreme Court's earlier decision in U.S. v. LOPEZ. In LOPEZ, the Supreme Court overturned the original Gun-Free School Zones Act, and upheld the 5th Circuit U.S. v. Lopez decision written by Judge Garwood! McFarland is a sleeper case that could overturn many federal gun laws.
This becomes more likely as warnings of a federal logjam of gun-crime cases could encourage the courts to knock out some federal gun laws such as the Hobbs Act as well as others. Read about it here: Is A Federal Court Logjam On The Way?
I. In a victory for limiting questionable police stops, the Fifth Circuit reversed a district court's ruling denying a motion to suppress evidence. Judge DeMoss, part of the Emerson three-judge panel, wrote the opinion. Judge Garwood, writer of the Emerson decision in the Fifth, concurred and added additional comments in U.S. v. Valadez.
J & K. In two Fifth Circuit decisions, the court in U.S. v. Green and U.S. v. Watson have reversed convictions for illegal gun possession cases based on unconstitutional searches.
L. And the Only Bad News: In a case that shows the limitation of judicial review often associated with the Second Amendment, and the dangers of a poorly run defense, a three-judge panel unanimously ruled that the machine gun ban does not violate either the Second Amendment or Interstate Commerce clauses. This case upheld Mr. Haney's conviction for possession of unregistered machine guns. This case highlights the dangers of just proclaiming the Second Amendment as a defense without sound reasoning behind it! ! !
M. Flashback: After the U.S. v. Lopez Fifth Circuit decision, which was upheld by the U.S. Supreme Court in U.S. v. Lopez, there is a growing question of whether many gun control laws are unconstitutional under challenges of the Interstate Commerce clauses. U.S. v. Kuban (5th Cir., 1996) case highlights the potential conflict as Judge DeMoss, part of the Emerson three-judge panel, wrote a dissent on the constitutionality of the felon in possession law. Judge Garwood, writer of the Emerson decision in the Fifth, stated that he was bound by precedent to uphold the law.
See the cases here: U.S. v. White (07/13/01), Bean v. B.A.T.F. (USA) (06/20/01) U.S. v. Henry (8/04/1999), U.S. v. Spruill (8/13/1999), U.S. v. Osborne (8/21/01), U.S. v. Fix (8/29/01), U.S. v. McFarland (9/18/01), U.S. v. Valadez (10/10/01), U.S. v. Haney (8/29/01), U.S. v. Kuban (8/29/1996) U.S. v. Green (11/09/01) and U.S. v. Watson (11/12/01) and U.S. v. Laskie (8/06/01 in PDF format)
U.S. v. Laskie REQUIRES ACROBAT READER to Read PDF files.
Download free Acrobat Reader Now!Article on U.S. v. Laskie decision, Appeals court overturns gun ruling.
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Item 6: The Justice Department will begin upholding the Constitution and return the Second Amendment to the Bill of Rights by officially recognizing it as an individual right. The Gun Grabbers are terrified that the release of this information could impact the Emerson case before the 5th Circuit! Also, the Justice Department said that it would appeal an Emerson loss! Could it be that Emerson is going to the Supreme Court? Also, more lawsuits being planned. Click here for a link to AG Ashcroft & DOJ to voice your support of their stand! or write or E-mail them directly from http://www.usdoj.gov/contact-us.htmlA. For the NRA, it's a warmer White House discusses Ashcroft & Emerson Case. (08/10/01)
B. Chicago Tribune Article (07/13/01)
C. Debate on AG Ashcroft & Second Amendment (07/13/01)
D. Los Angeles Times Article (07/12/01)
E. ABC News Story (07/11/01)
F. Wall Street Journal Article (07/11/01)
G. Reuters Story (07/11/01)
H.a. AP 1 (07/11/01)
I.b. AP 2 (07/12/01)
Item 7: AG Ashcroft's Letter to NRA Prompts Ethics Complaint From 2 Groups. This article indicates that AG Ashcroft may Appeal a Government loss in the Emerson case.
Item 8: John Ashcroft's Constitution: The attorney general offers an interpretation of the Second Amendment. Article mentions Emerson several times. From The Weekly Standard (06/25/01)
Item 9: Anti-freedom group issues an article on their feelings on both the Second Amendment and the Emerson decision delay and ramifications of its possible outcome. Decisions Looming on Second Amendment (06/14/01)
E-mail your Emerson questions and Join the Emerson E-mail List here!Click Here to Return to the Main Emerson Page
Item 10: Seattle P-I issues another Anti-Freedom Editorial and prompts a pro-individual rights response.A. P-I Wrong on Gun Law by Joe Waldron of the CCRKBA and Dave Workman of SAF. (06/16/01)
B. Court should renew ruling on guns. (06/01/01)
C. Previous Editorial: High court could clarify gun issue via Texas case. (04/02/00) Compare these editorials with David Kopel's articles listed below.
Item 11: Harvard law professor Laurence H. Tribe joins in supporting Attorney General John Ashcroft in supporting the Second Amendment as an individual right! Laurence H. Tribe Supports Second Amendment As an Individual Right! (05/24/01)
Item 12: Good Emerson Article Detailing how important the decision will be. Second Amendment debate intensifies (05/17/01)
Item 13: New articles from scholar David Kopel.A. Guns in Court. Discussing what U.S. v. Miller really said. (05/30/01)
B. Right to Bear (Some) Arms. A follow-up on Guns in Court. (06/07/01)
C. An Army of One. Showing that AG Ashcroft is not alone on the Second Amendment. (05/29/01)
D. Words of Freedom. The plain language of the Second Amendment does not restrict the people’s right to keep and bear arms. (05/17/01)
E-mail your Emerson questions and Join the Emerson E-mail List here!
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Item 14: John Ashcroft's Letter Supporting the Second Amendment as an Individual Right. [html]Letter in PDF format. REQUIRES ACROBAT READER to Read PDF files.
Download free Acrobat Reader Now!Item 15: Since a decision is reached, the charts of the delay are no longer needed. An Archive of the discussion is available by clicking on this sentence.
Item 16: Judge Garwood is a senior status judge, which means he could retire. Now that the decision is in, this can be told. However, since Garwood was on the original Emerson panel, he could chose to be on an en banc rehearing of Emerson as long as he doesn't fully retire.E-mail your Emerson questions and Join the Emerson E-mail List here!