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.
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 whether the Second Amendment was an individual right, and Parker responded 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.
If you don't believe the Government took this position, then Click on the following sentence:
Proof Al Gore's Justice Dep't Claimed Americans Have No Right to Keep and Bear Arms! ! ! !
Form 4473 - Purchase v. PossessOne 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 under the section SPECIFICALLY dealing with restraining orders, and nothing was included in the section 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 RevisitedAll 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 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 are now posted. Return to the Emerson Case Main Page to view the articles.
Other Opinions on the Emerson Oral Arguments:
From: Tom Gresham on keepandbeararms.com
From: Neal Knox on NealKnox.com Alerts
DOJ Says 'No Gun Rights'
Emerson Argument Causing A Roar
Circuit Court Asks Great QuestionsFrom: WorldNetDaily
2nd Amendment Defended by Judges (Based largely on the Neal Knox Report.)