alyeska338
06-13-2004, 05:05 PM
Federal Circuits Split Over Right to Bear Arms
The possession and use of firearms by private individuals is under attack around the world and at every level of society. The campaign to take firearms away from private citizens is very real and not likely to end soon. This is not a warning. It is reality today.
Hopefully, some protection is afforded American hunters by the Second Amendment. That is largely dependent upon how the Second Amendment is interpreted. What is its meaning? The right of individual private citizens to bear arms has only recently been recognized in federal court – namely, in the Emerson case decided in 2001 by the federal appeals court for the 5th Circuit located in New Orleans. (U.S. v. Emerson, 270 F.3d 203, 5th Cir., 2001, cert. denied.) That court held that the purpose of the Second Amendment was to protect the private individual right to bear arms (possession) rather than a right to maintain and arm a militia. It has since become the policy of the Bush Administration. Attorney General John Ashcroft issued a position memorandum throughout the Justice Department that the Second Amendment protects the individual right to bear arms and that the Emerson interpretation on the Amendment was correct. The U. S. Supreme Court chose not to review Emerson when application was made to it. (denied a writ)
In December, two new cases were decided that are not reassuring. The first case is directly on point. In Silveira v. Lockyer, rendered on 5 December, 2002, the Ninth Circuit Federal Court of Appeals in San Francisco squarely held that “the Second Amendment does not confer an individual right to own or possess arms.” Like in the Emerson case that expressed the opposite opinion, it is a scholarly 70-page opinion that can’t be taken lightly. “A robust constitutional debate is currently taking place in this nation regarding the scope of the Second Amendment, a debate that has gained intensity over the last several years....” The belief “that the Second Amendment guarantees to individual private citizens a fundamental right to possess and use firearms...urged by the NRA and other firearms enthusiasts...has never been adopted by any court until the recent Fifth Circuit decision in United States v. Emerson.... Now, for the first time, the United States government contends that the Second Amendment establishes an individual right to possess arms in a “reversal of position by the Justice Department...” The Ninth Circuit panel complains that the new Emerson case and administration policy has “caused” all sorts of “turmoil.”
The court credits “the leadership of the National Rifle Association (the NRA) with making “the disagreement over the meaning of the Second Amendment....particularly heated.” It then discredits the NRA by devoting a full page to former Chief Justice Burger’s view quoted from Parade Magazine, January 14, 1990. Burger is quoted as stating that the “individual rights view” of the Second Amendment was one of the greatest pieces of fraud, I repeat the word “fraud,” on the American public by special interest groups that I’ve ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state.
This confirmed split between the circuits makes acceptance of the case by the US Supreme Court more likely if the parties file a writ to seek that review. In the interval, individuals within the Fifth Circuit, which are the states of Louisiana, Texas and Mississippi, have the right to bear arms.
The second case is the Bean case on December 10. Bean was a convicted felon. He filed an application with the government (Bureau of Alcohol Tobacco and Firearms) under a federal statue that permits restoration of firearms privileges in select cases (18 U.S.C. 925(c)). That program has not been funded since 1992 so his application was returned. He filed suit and won, but the Supreme Court reversed it.
The case is noteworthy for what it might have decided, not for its opinion. Gun rights advocates followed the case closely in hopes that the US Supreme Court would finally embrace the Second Amendment issue. It did not. It rendered a short, seven-page unanimous decision without touching on the Second Amendment at all. The Court held that the statue that embodied the possession restoration procedure did not permit judicial review unless the application was really denied. In this instance, the application was not processed because the program was un-funded. It was not “denied.” Our reading is that the Second Amendment was not put directly in issue. Nevertheless, the case is important to those convicted felons who had hoped to be able to go to court to have their firearms restrictions lifted.
From the Hunting Report
http://www.huntingreport.com
The possession and use of firearms by private individuals is under attack around the world and at every level of society. The campaign to take firearms away from private citizens is very real and not likely to end soon. This is not a warning. It is reality today.
Hopefully, some protection is afforded American hunters by the Second Amendment. That is largely dependent upon how the Second Amendment is interpreted. What is its meaning? The right of individual private citizens to bear arms has only recently been recognized in federal court – namely, in the Emerson case decided in 2001 by the federal appeals court for the 5th Circuit located in New Orleans. (U.S. v. Emerson, 270 F.3d 203, 5th Cir., 2001, cert. denied.) That court held that the purpose of the Second Amendment was to protect the private individual right to bear arms (possession) rather than a right to maintain and arm a militia. It has since become the policy of the Bush Administration. Attorney General John Ashcroft issued a position memorandum throughout the Justice Department that the Second Amendment protects the individual right to bear arms and that the Emerson interpretation on the Amendment was correct. The U. S. Supreme Court chose not to review Emerson when application was made to it. (denied a writ)
In December, two new cases were decided that are not reassuring. The first case is directly on point. In Silveira v. Lockyer, rendered on 5 December, 2002, the Ninth Circuit Federal Court of Appeals in San Francisco squarely held that “the Second Amendment does not confer an individual right to own or possess arms.” Like in the Emerson case that expressed the opposite opinion, it is a scholarly 70-page opinion that can’t be taken lightly. “A robust constitutional debate is currently taking place in this nation regarding the scope of the Second Amendment, a debate that has gained intensity over the last several years....” The belief “that the Second Amendment guarantees to individual private citizens a fundamental right to possess and use firearms...urged by the NRA and other firearms enthusiasts...has never been adopted by any court until the recent Fifth Circuit decision in United States v. Emerson.... Now, for the first time, the United States government contends that the Second Amendment establishes an individual right to possess arms in a “reversal of position by the Justice Department...” The Ninth Circuit panel complains that the new Emerson case and administration policy has “caused” all sorts of “turmoil.”
The court credits “the leadership of the National Rifle Association (the NRA) with making “the disagreement over the meaning of the Second Amendment....particularly heated.” It then discredits the NRA by devoting a full page to former Chief Justice Burger’s view quoted from Parade Magazine, January 14, 1990. Burger is quoted as stating that the “individual rights view” of the Second Amendment was one of the greatest pieces of fraud, I repeat the word “fraud,” on the American public by special interest groups that I’ve ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies - the militia - would be maintained for the defense of the state.
This confirmed split between the circuits makes acceptance of the case by the US Supreme Court more likely if the parties file a writ to seek that review. In the interval, individuals within the Fifth Circuit, which are the states of Louisiana, Texas and Mississippi, have the right to bear arms.
The second case is the Bean case on December 10. Bean was a convicted felon. He filed an application with the government (Bureau of Alcohol Tobacco and Firearms) under a federal statue that permits restoration of firearms privileges in select cases (18 U.S.C. 925(c)). That program has not been funded since 1992 so his application was returned. He filed suit and won, but the Supreme Court reversed it.
The case is noteworthy for what it might have decided, not for its opinion. Gun rights advocates followed the case closely in hopes that the US Supreme Court would finally embrace the Second Amendment issue. It did not. It rendered a short, seven-page unanimous decision without touching on the Second Amendment at all. The Court held that the statue that embodied the possession restoration procedure did not permit judicial review unless the application was really denied. In this instance, the application was not processed because the program was un-funded. It was not “denied.” Our reading is that the Second Amendment was not put directly in issue. Nevertheless, the case is important to those convicted felons who had hoped to be able to go to court to have their firearms restrictions lifted.
From the Hunting Report
http://www.huntingreport.com