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Appeals Court Rules On Second Amendment


Wed Oct 17 14:57:16 2001


Domestic Tranquility
Appeals Court Rules On Second Amendment
Associated Press

The government has the right to restrict a person's Second Amendment
right to bear arms if that person is subject to a domestic violence
court order, a federal appeals court ruled. The court on Tuesday
overturned U.S. District Court Judge Sam Cummings' decision that Timothy
Emerson was wrongly prosecuted for buying a pistol while he was under a
temporary restraining order designed to protect his wife and child

http://news.findlaw.com/ap/o/1110/10-17-2001/20011017052052500.html

Read The 5th Circuit Opinion (US v. Emerson)
http://laws.lp.findlaw.com/5th/9910331cr0.html
===============================================================
News Release
Second Amendment Foundation
12500 NE 10th Place
Bellevue, WA 98005
(425) 454-7012 . FAX (425) 451-3959 . www.saf.org
For Immediate Release: 10/16/01
Contact: Dave LaCourse (425) 454-7012

APPEALS COURT CONFIRMS THAT SECOND AMENDMENT PROTECTS AN INDIVIDUAL
RIGHT

BELLEVUE, WA - In a stunning decision, the 5th Circuit Court of Appeals
in New Orleans has crushed over 60 years of judicial misinterpretation
and anti-gun rhetoric by finding that the Second Amendment of the U.S.
Constitution protects an individual right.

While the court's decision in U.S. v Emerson was to reverse and remand a
lower court ruling that cleared Dr. Timothy Joe Emerson of a federal
violation of the 1994 Domestic Violence Act, the 5th Circuit clearly
ruled that the Second Amendment guarantees the right of an individual
citizen to keep and bear private arms, "regardless of whether the
particular individual is then actually a member of the militia."

Writing for the majority, Judge William Garwood noted that the
government's long-standing interpretation of the 1939 Miller case, that
the Second Amendment merely expresses a "collective right" is not
supported by the actual Miller decision. He further noted that, "we are
mindful that almost all of our sister circuits have rejected any
individual rights view of the Second Amendment. However, it respectfully
appears to us that all or almost all of these opinions seem to have done
so either on the erroneous assumption that Miller resolved that issue or
without sufficient articulated examination of the history and text of
the Second Amendment."

"This is truly a victory for firearms civil rights," said Dave LaCourse,
public affairs director for the Second Amendment Foundation. "For years,
gun control extremists and constitutional revisionists have insisted
that there is no individual right to keep and bear arms. We now can say
with the support of the federal court that we have been right, and they
have been wrong, all along."

Acknowledging that in his dissent, Judge Robert M. Parker noted the
Second Amendment right is "subject to reasonable regulation," LaCourse
stated: "No right is absolute, not freedom of speech or the press. The
Constitution does not protect slander or libel, nor does it guarantee an
absolute right to practice a religion that might include human or animal
sacrifice. What remains to be determined, and what we will have to
continue fighting over, is the definition of 'reasonable regulation'."

LaCourse noted, as did the majority, that Dr. Emerson has been acquitted
of all state charges relating to his case, which stems from a divorce
proceeding. He was charged with violating 18 U.S.C. § 922(g)(8)(C)(ii)
for having a firearm while under the conditions of a civil divorce court
restraining order. District Judge Sam Cummings held that this law
violated Emerson's Second Amendment right because he had not yet been
convicted of any crime.

"Whether Dr. Emerson wins on the remand or appeals and carries his case
ultimately to the U.S. Supreme Court," LaCourse said, "the fact remains
that the Fifth Circuit has ruled that the Second Amendment, like all
other amendments referring to 'the people' in our Bill of Rights,
protects the right of an individual citizen, not the state. The court
has smashed a cornerstone of the anti-gun house of cards."

The Second Amendment Foundation is the nation's oldest and largest
tax-exempt education, research and legal action group focusing on the
Constitutional right and heritage to privately own and possess firearms.
SAF previously has funded successful firearms-related suits against the
cities of Los Angeles, New Haven, CT, and San Francisco on behalf of
American gun owners. Current projects include a damage action lawsuit
against the cities suing gun makers, an amicus brief in support of the
Emerson case holding that the Second Amendment is an individual right, a
lawsuit against the Clinton gun and magazine ban and a lawsuit in
Cincinnati supporting the right of self-defense carry of firearms.
Please visit the best Emerson webpages at http://www.saf.org
-END-

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