Fw: 2nd Amendment defended by judges
2nd Amendment defended by judgesSubject: 2nd Amendment defended by judges FRIDAY
defended by judges
Gun-toting jurists uphold
individuals' right to bear arms
By Jon E. Dougherty
© 2000 WorldNetDaily.com
Gun-rights activists from across the country are giddy after word spread that the Second Amendment's right to "keep and bear arms" received what court observers said was a fair and equitable hearing in the Fifth U.S. Circuit Court of Appeals in New Orleans.
During a presentation of the case to a three-judge panel on Tuesday, gun-rights activists who observed the proceedings reported that "the court really beat up on ... government" lawyers who were arguing that the Second Amendment is a right only granted to states, not individuals.
Also, a report summarizing the hearing suggested Wednesday that gun-rights activists may be able to count on more constitutional support for an individual's right to bear arms from the courts in the future.
The appeals case stems from an earlier U.S. district court judge's ruling in Texas on March 30, 1999. U.S. District Judge Sam R. Cummings in Lubbock ruled in favor of Dr. Timothy Joe Emerson's claims that his arrest was unconstitutional. Emerson was arrested while under a restraining order from his estranged wife for violation of a federal statute prohibiting a person under such an order from possessing a firearm.
According to pro-gun author Neal Knox, Judge Harold R. DeMoss, Jr., a George Bush appointee, told government lawyers they were misreading a prior Supreme Court ruling from 1939 on which they were basing their argument.
That case, Miller vs. United States, found that because a sawed-off shotgun was of "no military value," citizens were forbidden to have them. However, DeMoss reportedly chided government lawyers because the 1939 case did nothing to establish an individual's right or a state's right in the Second Amendment.
Also, the court noted, in the Miller case, sawed-off shotguns were found to have "no military value," but other weapons -- such as so-called "assault rifles" -- have been banned in the U.S., even though they do have immense military value.
Cummings made similar observations in his earlier ruling.
Court observers said DeMoss asked federal prosecutors if Emerson's Beretta Model 92 9mm pistol isn't the type used by armies. Of course it is, noted Knox, "it is the standard U.S. sidearm."
DeMoss also raised a "critical" 10th Amendment issue, the report said.
"I have a 12 gauge and 16 gauge shotgun and a .30 caliber deer rifle in my closet at home. Can you tell me how those affect interstate commerce?" the judge asked prosecutors.
According to the report, Judge Robert M. Parker, a Carter appointee who was moved to the appellate court by President Clinton, told the government, "I don't want you to lose any sleep over this, but Judge Will Garwood (the senior judge) and I between us have enough guns to start a revolution in most South American countries."
Court observers told the Knox Report that there "was no reluctance" to discuss Second Amendment issues, unlike in "most firearms-related court cases." One observer, Linda Thomas of Houston, told Knox that the judges had done their homework.
"It was like sitting in on a Gun Rights Policy Conference legal seminar," she said.
"If the Fifth Circuit concurs with the trial judge that the Second Amendment protects gun ownership as an individual right -- which now seems quite possible -- there would be a conflict between the circuit courts, almost guaranteeing a Supreme Court hearing after the next election," Knox said on Wednesday.
In his initial trial held in Cummings' court, Emerson claimed the federal statute he was charged under violated his Second and Fifth Amendment rights, as well as the 10th Amendment to the U.S. Constitution.
While the court upheld the statute under the 10th Amendment, it ruled that the law in question, 18 USC, §922 (g)(8), was indeed a violation of Emerson's Second and Fifth Amendment rights.
"[The statute] is unconstitutional," Cummings wrote in regards to the Second Amendment, "because it allows a state court divorce proceeding, without particularized findings of the threat of future violence, to automatically deprive a citizen of his Second Amendment rights."
Regarding the Fifth Amendment, Cummings said because the statute "is an obscure, highly technical statute with no [prior notice] requirement, it violates Emerson's Fifth Amendment due process rights to be subject to prosecution without proof of knowledge that he was violating the statute."
Court officials told WorldNetDaily that the justices were under no time limit to issue a ruling, and they had no indication yesterday when that ruling could come.
Jon E. Dougherty is a staff reporter for WorldNetDaily.
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I have a 12 gauge and 16 gauge shotgun and a .30 caliber deer rifle in my closet at home. Can you tell me how those affect interstate commerce?
-- U.S. Fifth Circuit Court of Appeals Judge Harold R. DeMoss, Jr.
I don't want you to lose any sleep over this, but Judge Will Garwood (the senior judge) and I between us have enough guns to start a revolution in most South American countries.
-- U.S. Fifth Circuit Court of Appeals Judge Robert M. Parker
If the Fifth Circuit concurs with the trial judge that the Second Amendment protects gun ownership as an individual right ... there would be a conflict between the circuit courts, almost guaranteeing a Supreme Court hearing after the next election.
-- Neil Knox, The Knox Report
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