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| 5/25 |
| 2007/4/19-21 [Reference/Military] UID:46373 Activity:high |
4/19 Just last month, two private citizens stopped a potential shooting
spree because they had guns: http://csua.org/u/ii6
\_ And?
\_ I know this is going to spur another thread on whether sources
matter, but I'm not finding this in the mainstream news. Help?
\_ Scripps isn't mainstream?
\_ Scripps is a news-service; the story is being quoted from
The Commercial Appeal out of Memphis. This appears to be the
_only_ source of this story out there in the Internet.
\_ Here's the local news story:
http://www.wbir.com/news/local/story.aspx?storyid=43109
\_ Believe me, I want to believe this story is true, but now
I've got a Commercial Appeal story and an AP story that
doesn't actually appear in a search of the AP archives.
Please help!
\_ Ah, so the local stories are also in on the conspiracy.
Got it.
\_ What conspiracy? If you see a news story from only
one source, it's hard to tell if it's news or
anecdote. Are you not familiar with urban legends?
\_ Found the Commercial Appeal story, and it's worthy
of Paul Harvey: http://csua.org/u/iib (Commercial
Appeal). Roberson's side of the story:
'Roberson, 56, said Wednesday evening that he'd been
rear-ended by a black car carrying six men.
Roberson said he called police, then when the men
got out of their car, he reached down, got his gun
and tucked it into his back pocket.
At some point, Roberson said most of the men
dispersed, leaving just the driver and a "heavyset"
man. Roberson said the large man then pulled a gun.
"I didn't know what his intentions were, so I came
out with mine. I started shooting," said Roberson,
who is licensed to carry a gun.
Roberson, who was charged with reckless
endangerment, admits to some regrets about the
affair.
"I probably could've handled it a little better,"
added Roberson, who said he'd put his gun away
before the brothers arrived. "Just leave it ...
alone."
So now we know the rest of the story, and it's not
that a well-armed citizenry leads to less shootings.
\_ Great example of how the easy availability of guns leads to
shootings. -tom
\_ So what is your plan to eliminate guns? Passing anti-gun laws
won't eliminate them from criminal hands (that's why we call
them criminals, they don't follow laws). Are you advocating
shutting down the gun makers so guns simply cease to become
available and rounding up all the fire arms currently out there?
\_ The shooter at VA Tech and the shooter in this story both
had legal permits; they weren't criminals until they
started shooting. It doesn't take a whole lot of
imagination to figure out ways to reduce gun ownership. -tom
\_ The VAT guy had been sent to the loony ward for help and
was a known problem. He should not have been given a gun
permit. We don't know much about this other guy so I can't
comment. Anyway, I'm not very imaginative, so what is
your plan to reduce/eliminate gun violence?
\_ Medical records are private, and I'm sure the NRA
wouldn't be a big fan of legislation that barred
anyone who's been treated for depression from owning
a gun. Ya think?
My plan is to enact legislation like England's,
develop gun turn-in programs, and confiscate them
from criminals. -tom
\_ Medical records aren't private when someone is
determined to be a threat. And *anyone* can be
hauled in for a 3 day evalution with little more
than a social worker's say so. And what the NRA
thinks of anything is meaningless. That's red
herring material.
So your plan is to do what a number of cities already
do with turnin programs and to confiscate guns from
criminals which already happens. Ok. Your plan is
in place and has failed. Now what?
\_ Uh, I'm saying that a gun shop can't look at
someone's medical records to determine if
they can sell him a gun.
And you left out a rather important part of the
plan, which is to enact gun control laws which,
you know, keep people from buying more guns.
And yes, my plan is in place, and has succeeded.
-tom
\_ No one said a gun shop can look at medical
records. What do you think the waiting period
is for? They're sending your name off to get
checked for things like having a criminal
record or being a lunatic. And your idea of
gun control laws will do exactly nothing to
keep guns from the hands of real criminals
while disarming their potential victims, the
rest of us. Your plan has failed to get guns
from the hands of real criminals while making
it very hard for responsible citizens to
protect themselves. Good work!
\_ Your medical record is not checked during
the waiting period, so not only is your
conjecture ridiculous, your facts are
wrong. -tom
\_ The NICS system does include records of
whether people have been committed. So
if a court concludes that you're a threat
to yourself and others, has you committed
to a mental hospital, and you later try
to buy a gun, the NICS system will flag
that and reject you when the firearms
dealer runs you through NICS at the time
of purchase. Incidentally, a NICS check
only takes a few minutes in most cases.
A waiting period is only required at a
federal level when it doesn't go that
quickly (for whatever reason -- confusion
in their records, or just from NICS
being down). A waiting period is usually
imposed at the state level (such as the
ten day wait in California). NICS did
involve a waiting period in the early
days, but that went away by design as
the system matured. From what I've seen
in the news, it sounds like the judge
stopped short of something that would
have shown up in NICS.
--alawrenc
\_ VT nutjob was not committed. (It's
very difficult to commit anyone
these days.) -tom
\_ Being adjudicated as a mental
defective will also disqualify you
and show up in NICS. The point I
was trying to make is that things
can show up in a NICS check to
disqualify you based on your mental
health without the gun shop having
access to medical records. If you
get rejected by NICS, the FFL who
made the NICS request doesn't know
why.
--alawrenc
\_ So lets say that we ban all gun factories except those
that sell to law enforcement and the military, what is
to stop criminals from either (1) importing their guns
from elsewhere (a la the drug trade) or (2) making guns
illegally? I mean do you really want the gun trade to
go underground and turn that into another debacle like
the whole drug thing?
\_ The VA Tech shooting was not done by "a criminal".
Neither was the shooting in this article. It will
still be possible to obtain guns, just like any other
contraband; should we legalize heroin, since it's
still possible to get it on the street? (Actually
if you're a libertarian nutjob, don't answer that.)
-tom
\_ Of course he's a criminal, he decided to murder
a whole bunch of people. He's probably not that
stupid and could very possibly have acquired
an illegal gun had there been a handgun ban.
Or modified a legal gun to make it concealable.
\_ He wasn't a criminal when he bought the gun,
over the counter. Surely you aren't suggesting
that it's just as easy to obtain heroin as
alcohol now. -tom
\_ You make a HUGE assumption - if guns were
not available OTC then the nutjob wouldn't
have been able to get any guns. If one is
determined to use a gun in connection w/ a
crime, then one will find a way to obtain
a gun. Furthermore, let's say we ban all
the guns, and criminals switch to using
knives, swords, crossbows, &c. What then
ban anything that could be used as a weapon?
Ban all classes that might teach you how to
make a weapon? Well at least the next gen
of ugs wouldn't have to suffer the 7 series.
\_ How about this: Let's just ban guns,
because unlike knives, swords, and
crossbows, they are known to be commonly
used in fatal attacks in the U.S., and
there is plenty of precedent for
ways to control their distribution. -tom
\_ Swords, knives, &c. have been killing
people for MUCH longer than guns have.
What effective precedents are there
for controlling gun distribution that
would ACTUALLLY keep guns out of the
hands of criminals?
The whole failure of your argument
is the assumption that w/o OTC access
to guns, those who commit crimes would
be deprived of access to them. That
is not a realistic assumption. Do you
really think this nutjob wouldn't have
found some other way to get his guns?
\_ Yes, I think there's a big difference
between being able to walk into a
store and buy a gun, and having to
find some black-market way to
obtain one. It's the same difference
that keeps more people drinking
alcohol than smoking pot. And
there exist other countries which
manage to keep guns out of the
hands of nutjobs. It's obviously not
impossible--it's being done. -tom
\_ Yeah, banning guns has completely
stopped violent crime in Australia
and the UK. Oops, not really.
\_ Strawman. Both the U.K. and
Australia have murder rates
less than half of ours. -tom
\_ More to the point, the number
of mass fatalities due to
violent crime is lower in places
where guns are banned.
\_ I guess we just disagree. I think
that you might stop the occasional
spur of the moment crime by making
it harder to purchase guns, but I
don't think that a ban will affect
people like the nutcase in VT.
Such people will manage to find
guns just like ugs at Cal manage
to find pot on a regular basis.
I just think the marginal upside
of safety from gun violence is
not enough to outweigh the loss
of overall freedom that we as a
people will have from our gov.
I think my freedom is worth the
risk that I will be a victim of
gun violence. You don't. I can
accept that.
\_ Could you explain, then, why
our murder rate is double
that of comparable countries?
-tom
\_ I do not think there are
any comparable countries.
Every where else on earth
is less free than the US.
Perhaps the price for my
freedom is that some nut
will kill me using a gun
he bought at Walmart, but
I'm willing to pay that
price.
\_ Uh, how is the U.S. any
more "free" than the
U.K. or Australia? Other
than gun ownership. -tom
\_ We do have a more open
legislative process than
at least the UK.
-scotsman
\_ Can you walk down the
street without being
watched by the gvt?
You can't and no.
They are on track to
1984. Only lack of
funds for cameras in
every home is holding
them back, they have
them every- where
else. The people are
certainly suffici-
ently brow beaten for
it. You can't even
legally defend
yourself or another in
the UK. If the UK is
your idea of a free
place, I'd rather risk
getting shot, thanks.
\_ You didn't mention
Australia. And
there are plenty
of government
cameras in the US.
-tom
\_ I don't know
\_ Drawing on this argument, are
there any studies/documentaries
showing how hard/easy it is to
obtain a gun on the so-called
black market? Are there studies
comparing black market sales of
of firearms in countries that
ban guns and those that, like
the US, regulate irregularly?
anything about Australia so I didn't comment. Unlike a number
of people here I restrict myself to things I know something
about. And no, the number of cameras in the US which are
mostly in gas stations and banks is trivial next to what the
UK has done and plans to expand to. There's no way you can
make any serious claim that the US == UK on watching their
citizens. It's even worse there because the intent of the
cameras is to exert social control, not improve security such
as here with banks. Do you really not know what is going on
in the UK with their 1984 style camera plans?
\_ Do you really not know what's going on in the U.S.?
There are cameras at almost every intersection in
San Francisco now. They're starting to show up on
speed limit signs, too. Also, you stated that
"there are no comparable countries," and
"everywhere else is less free than the U.S." That
implies knowledge of why Australia is not
comparable to the U.S. Certainly, not including
Australia in your response is a dodge. -tom
\_ We need a War on Guns.
\_ not everyone sprays and prays like the runner buttorper u r
\_ "I was addicted to Netrek. The fame, the success, the
glory." Good to see you back, Duck. -tom
\_ 2 INL rings baby! CMU and GB! hehe
\_ Tom. so what happens when your ship if fueless?
you get scummed (killed).. what happens if you have
fuel? Tom runs away.. Ergo.. possession of firearms
(fuel) leads to peaceful situations - duck
\_ Fuel is not a firearm; torps and phasers are. If you
try your to SC-ogg when I have fuel, I'll just kill
you and take the planet. Ergo, possession of
firearms leads to genocide. -tom
\_ NO!.. SOunds like Self-Defense to me!
So you do have it in you!! u just dont know it-duck
\_ The funny thing about this story is that it basically goes like
this:
1) Minor traffic accident
2) Minor argument
3) Unknown person allegedly pulls out a gun
4) Robinson pulls out a legal gun and starts shooting
5) Robinson puts gun away
6) Yahoo in pickup truck pulls out a legal gun, threatens Robinson
The funny part is that this is being posted as an example of why
we need *more* guns! Like this interaction went better because
people had guns. If anything, it points out the stupid things
people do when they have guns, and that one doesn't need to be
a "criminal" to do something stupid with a gun that could get
someone killed. -tom
\_ That's one version. How about this version: not knowing Robinson
had a gun, they figured they push him around and maybe beat him
up. But they were wrong. Then another armed citizen comes up
and is fortunately armed and defuses the whole thing. Without
guns involved, this could have easily turned into, "Man in minor
fender bender beaten to death, police seek possible witnesses".
\_ Unlike yours, my version is supported by the actual story
as reported. -tom
\_ Duh. My version is the hypothetical if guns weren't
involved. Try again with reading comprehension > 0.
\_ According to the article, there was only one guy
left *before* any guns were involved. Try again
with clue > 0. -tom
\_ Yeah, a big thug who was looking to beat him up,
like I said. He didn't pull the gun for nothing.
Back to reading class.
\_ ??? R says he was tailed by 6 dudes in car. He
gets out of his truck. They get out of their car
five of them split. The remaining guy pulls gun.
R pulls gun and starts shooting. Bros. arrive and
draw gun on R. Large dude disappears. Bros. place
R under citizen arrest. By any reading of the
article, the five dudes split before R pulled his
gun. -!tom
\_ here is a related question. The whole second amendment thing is
wrt a "well-regulated militia". So how does that allow someone
to own a gun unless they are part of such a militia. And , last
I checked, state militias went out with the civil war and laws
against treason/overthrow of the government. So, shouldn't
the whole second amendment thing be moot as a justification for
personal handgun use /ownership? --not a troll
\_ Because the "militia" at that time was all adult males capable of
using a firearm, not something like the National Guard we see
today. Remember that at that time most people were farmers or
tradesmen and the government was trivially small. There was little
"well regulated" government anything at the time.
\_ I understand the past relevance; but not the current one.
Gov't is very different now than it was back then. As I
understand, it was supposed to also act as a stopgap to
an overreaching Federal gov't (or a king). I just don't
understand the contemporary relevance. Unless of course
you beleive in the right/need for the violent overthrow of
the government. No sane person would think that way.
(At least I hope not).
\_ one could say the contemporary purpose is the same as
the past one: as a deterrent. no sane person would
want to start a global thermonuclear war.
\_ Every NRA member should be issued a thermonuclear
device to be used in self-defense only. Because
who can you trust, if not NRA members? -tom
\_ This is actually a good question for which there is no
clear answer (depending on your politics).
I am not a 2d expert, but what I know from my Con Law
class, and related, is that there are two views re the
rights in the 2d. To inform our discussion, the amend.
is quoted below:
[i] A well regulated militia, [ii] being
necessary to the security of a free state,
[iii] the right of the people to keep and
bear arms, [iv] shall not be infringed.
(I have numbered the phrases for reference purposes.)
Phrase iii seems to recongize that that "the people"
have a right to "keep and bear arms." This is what
many people call the "personal right" to arms.
The difficulty comes when one tries to determine the
import of phrases i and ii.
One view is that these phrases qualify the personal
right. Thus the right recongized is a right of the
states to maintain an armed militia. The modern view
on this is that the term militia means something like
the national guard, which can be deployed by a state's
governor. Basically, Congress couldn't pass a law that
prevented the states from arming thier national guard
units.
A different view is that phrase i and ii recognize a
separate right (the right of the states) or merely
explain the personal right; the personal right exists
separate and apart from the other language. This view
comes from the fact that many of the other amendments
recognize multiple rights in condensed language. It is
also supported by fact that at the time the amendment
was adopted, the term militia was widely understood to
mean all adult males. (Some dispute whether this is
strictly true, b/c why would the framers use the term
"people" and "militia" if the terms were basically the
same).
If you are really interested, you should read the
following cases:
[1] PARKER v. D.C., No. 04-7041 (D.C. Cir. Mar. 9, 2007),
http://urltea.com/ec4 (cadc.uscourts.cov - pdf)
(holding that the 2d amend. recognizes a personal
right).
[2] US v. EMERSON, 270 F.3d 203 (5th Cir. 2001),
http://urltea.com/ec6 (findlaw.com)
(holding that the 2d amend. recongizes a personal
right).
[3] SILVEIRA v. LOCKYER, 312 F.2d 1052 (9th Cir. 2002)
http://urltea.com/ec8 (ca9.uscourts.gov - pdf)
(holding that the 2d amend. does not recognize a
personal right).
[4] US v. MILLER, 307 U.S. 175 (1939)
http://urltea.com/ec9 (findlaw.com)
(questioning whether the 2d amend. provided any
personal right, absent evidence tending to show
that possession of a particular weapon had some
reasonable relationship to the preservation or
efficiency of a militia).
\_ the "well regulated" modifier I believe was meant to address
a real fear of mob rule and other acts of the unwashed
citizenry. thus, we see the correct interpretation of the
second amendment - a balance between gun ownership as a
fundamental right and guarantee against government tyranny,
and regulation to prevent going loco with your Glock.
the core issue is in where you strike this balance. |
| 5/25 |
|
| csua.org/u/ii6 -> www.shns.com/shns/g_index2.cfm?action=detail&pk=ACTIONSCENE-03-08-07 Text only version Brothers stop a shooter on their way to dinner By ALEX DONIACH Scripps Howard News Service 2007-03-08 00:00:00 MEMPHIS -- It played out like a scene in an action movie. Two brothers from East Memphis were driving to a burger shop to pick up dinner when they noticed a red Mustang stalled. Thinking it was just car trouble, William Webber, and his older brother, Paul Webber, ignored the car and the man standing beside it. "And then I heard the pop, pop, pop of a gun," said Paul, 29. "Those bullets could have ricocheted off cars and hurt a lot of people." No one was injured although one bullet hit a woman driver's car door. Paul and William, both licensed to carry weapons, made a hasty U-turn, jumped out of the Jeep and held their guns high so Roberson could see them. Roberson gave the brothers a "wild and deranged" look, William said, then dropped to the ground. The Webbers held him at gunpoint until police arrived five minutes later. Roberson, 56, said that he'd been rear-ended by a black car carrying six men. Roberson said he called police, then when the men got out of their car, he reached down, got his gun and tucked it into his back pocket. At some point, Roberson said most of the men dispersed, leaving just the driver and a "heavyset" man. "I didn't know what his intentions were, so I came out with mine. I started shooting," said Roberson, who is licensed to carry a gun. Roberson, who was charged with reckless endangerment, admits to some regrets about the affair. "I probably could've handled it a little better," added Roberson, who said he'd put his gun away before the brothers arrived. "These men should be commended for stopping another man in the middle of a crime," he said. |
| www.wbir.com/news/local/story.aspx?storyid=43109 Post a Comment spacer Police in Memphis say a gunman firing a pistol beside a busy city street was subdued by two passers-by who were also armed. Advertisement No one was hurt during the incident that apparently began with a minor traffic accident, but one passing car was believed hit by a bullet. Brothers William Webber and Paul Webber told police they stopped their car and pulled their own pistols when they saw a man firing a handgun yesterday. The brothers said they ordered the man to drop his weapon and then held him at gunpoint until police arrived a few minutes later. Police arrested Dementrius Roberson and charged him with reckless endangerment. Police say the Webber brothers and Roberson have licenses to carry firearms. Paul Webber says Roberson was firing across traffic and they couldn't tell why he was shooting. |
| csua.org/u/iib -> www.commercialappeal.com/mca/local/article/0,2845,MCA_25340_5402238,00.html Local Brothers who disarmed gunman felt it was their duty Photo Dave Darnell/The Commercial Appeal Brothers William Webber (left), 23, and Paul Webber, 29, display the handguns they used to stop a shooting at Perkins and Park. Contact March 8, 2007 It played out like a scene in an action movie. Two brothers from East Memphis were driving to Back Yard Burgers to pick up dinner Tuesday night when they noticed a red Mustang stalled at Perkins and Park. Thinking it was just car trouble, William Webber, and his older brother, Paul Webber, ignored the car and the man standing beside it. Advertisement "And then I heard the pop, pop, pop of a gun," said Paul, 29. "Those bullets could have ricocheted off cars and hurt a lot of people." No one was injured although one bullet hit a woman driver's car door. Paul and William, both licensed to carry weapons, made a hasty U-turn, jumped out of the Jeep and held their guns high so Roberson could see them. Roberson gave the brothers a "wild and deranged" look, William said, then dropped to the ground. The Webbers held him at gunpoint until police arrived five minutes later. Roberson, 56, said Wednesday evening that he'd been rear-ended by a black car carrying six men. Roberson said he called police, then when the men got out of their car, he reached down, got his gun and tucked it into his back pocket. At some point, Roberson said most of the men dispersed, leaving just the driver and a "heavyset" man. "I didn't know what his intentions were, so I came out with mine. I started shooting," said Roberson, who is licensed to carry a gun. Roberson, who was charged with reckless endangerment, admits to some regrets about the affair. "I probably could've handled it a little better," added Roberson, who said he'd put his gun away before the brothers arrived. "These men should be commended for stopping another man in the middle of a crime," he said. The Webbers, who live with their mom in a quiet East Memphis neighborhood, said they felt obliged to act. "There are not enough men and women out there willing to step up and say, 'Don't do that,' " Paul said. "I don't want to sound like some Neighborhood Watch salesman but it's important to look out for the good of mankind." Both Webbers are 6 feet tall and share the thick build of former football players. Born and raised in Missouri, they moved to Memphis with their mom and three siblings after their dad passed away in 1998. Paul played football at the University of Nebraska and at the University of Missouri. He is a substitute teacher and coach at Harding Academy. William graduated from Harding Academy in 2002 and works at Lenny's Sub Shop in Arlington. They sought "carry and conceal" permits because "it's a constitutional right," William said. Added Paul: "I'm a major advocate of citizens carrying guns as long as they are responsible." The permits require eight hours of training and written and shooting tests. According to the Tennessee Department of Safety, about 25,000 Shelby County residents owned a handgun permit in 2004. This was the highest number of permit holders in the state, followed by Davidson County with about 11,600 permit holders. The Webbers said citizens need to take security into their own hands. "Our dad always told us not to put ourselves in a situation where we can't protect ourselves," William said. |
| urltea.com/ec4 -> pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf vH}ZS@LuGqsp3vPR<r'&H}0L>+:Q$ed37|Q^lLZ+_bnFM"gdcsFYTQ)8CE _7/'F= vU<e UBBY+'"%$MH *WXy>Y1$_g,O<'^ee "zo%9. x"A{=I1IQ|AhRXia4<n#31Ygs)<W"S/1<$0HLzhm jE_lzE/^1N ,qRqa38 l@QY-qS sfJm$A9X5< P! |
| urltea.com/ec6 -> caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=5th/9910331cr0.html com REVISED NOVEMBER 2, 2001 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. Appeal from the United States District Court for the Northern District of Texas October 16, 2001 Before GARWOOD, DeMOSS and PARKER, Circuit Judges. GARWOOD, Circuit Judge: The United States appeals the district court's dismissal of the indictment of Defendant-Appellee Dr. Timothy Joe Emerson (Emerson) for violating 18 USC 922(ii). The district court held that section 922(ii) was unconstitutional on its face under the Second Amendment and as applied to Emerson under the Due Process Clause of the Fifth Amendment. Facts and Proceedings Below On August 28, 1998, Sacha Emerson, Emerson's wife, filed a petition for divorce in the 119th District Court of Tom Green County, Texas. The petition also requested, inter alia, a temporary injunction enjoining Emerson from engaging in any of twenty-nine enumerated acts. On September 4, 1998, Judge Sutton held a temporary orders evidentiary hearing. Sacha Emerson was represented by counsel while Emerson appeared pro se. There is no evidence that Emerson was unable (financially or otherwise) to retain counsel for the hearing or that he desired representation by counsel on that occasion. He announced ready at the beginning of the September 4 hearing. Almost all of Sacha Emerson's direct testimony concerned financial matters, but the following relevant exchange took place on direct examination by her attorney: Q You are here today asking the Court for temporary orders regarding yourself and your daughter; Q You have asked in these restraining orders regarding Mr Emerson in that he not communicate with you in an obscene, vulgar, profane, indecent manner, in a coarse or offensive manner? And he has threatened - he has made some phone calls to you about that? In his testimony he stated in another connection, among other things, that he was suffering from "anxiety" and was not "mentally in a good state of mind." On September 14, 1998, Judge Sutton issued a temporary order that included a "Temporary Injunction" which stated that Emerson "is enjoined from" engaging in any of twenty-two enumerated acts, including the following: "2. Threatening Petitioner in person, by telephone, or in writing to take unlawful action against any person." Intentionally, knowingly, or recklessly causing bodily injury to Petitioner or to a child of either party." Threatening Petitioner or a child of either party with imminent bodily injury." The order provides that it "shall continue in force until the signing of the final decree of divorce or until further order of this court." The September 14, 1998 order did not include any express finding that Emerson posed a future danger to Sacha or to his daughter Logan. On December 8, 1998, the grand jury for the Northern District of Texas, San Angelo division, returned a five-count indictment against Emerson. The government moved to dismiss counts 2 through 5, which motion the district court subsequently granted. It appears that Emerson had purchased the pistol on October 10, 1997, in San Angelo, Texas, from a licensed firearms dealer. Emerson does not claim that the pistol had not previously traveled in interstate or foreign commerce. It is not disputed that the September 14, 1998 order was in effect at least through November 16, 1998. Emerson moved pretrial to dismiss the indictment, asserting that section 922, facially and as applied to him, violates the Second Amendment and the Due Process Clause of the Fifth Amendment. He also moved to dismiss on the basis that section 922 was an improper exertion of federal power under the Commerce Clause and that, in any case, the law unconstitutionally usurps powers reserved to the states by the Tenth Amendment. An evidentiary hearing was held on Emerson's motion to dismiss. The district court granted Emerson's motions to dismiss. The district court held that dismissal of the indictment was proper on Second or Fifth Amendment grounds, but rejected Emerson's Tenth Amendment and Commerce Clause arguments. Emerson filed a notice of cross-appeal, which was dismissed by this Court. The government challenges the district court's dismissal on Second and Fifth Amendment grounds. Emerson defends the district court's dismissal on those grounds and also urges that dismissal was in any event proper under the Commerce Clause and on statutory grounds. Discussion I Construction of 18 USC 922 18 USC 922 provides in relevant part: " It shall be unlawful for any person- .... who is subject to a court order that- was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." Emerson argues that section 922(ii) should be construed to require that the particular predicate court order include an explicit finding that the person enjoined posed a credible threat of violence to his spouse or child. Emerson further argues that the statute must also be read to require that the predicate order be supported by sufficient evidence before the court entering it to sustain such a finding, so that the court in the criminal prosecution must examine the record in the proceeding before the court entering the predicate order and must acquit the defendant in the criminal case if the evidence before the court entering the predicate order was not sufficient to sustain such a finding. It is, of course, our duty to construe a statute so as to avoid any serious constitutional questions. However, the statute must be susceptible to that construction, ie our construction must be fairly possible; the duty to avoid constitutional questions is not a license to rewrite the statute. In addition, if uncertainty remains after an examination of the statute's text, its legislative history and the policies it advances, the rule of lenity requires this uncertainty to be resolved in favor of Emerson. Turning first to Emerson's second statutory argument, there is nothing in the text of the statute to support it. Moreover, it is contrary to uniform construction of section 922 and its predecessors under which the courts have construed this and other similar subsections of section 922. suggests any restriction on the scope of the term 'convicted,'" id. at 918, so also nothing in section 922 suggests that the validity of the particular predicate court order may be inquired into in the section 922 criminal prosecution. Moreover, this is consistent with the long standing federal rule that violation of an injunction that is subsequently invalidated may, at least so long as it cannot be characterized as having only a transparent or frivolous pretense to validity, be punished as criminal contempt. If the requirements of 922 and are fulfilled, then by its terms section 922's firearms disability attaches if either clause or clause (ii) applies. Although an express judicial finding of future dangerousness pursuant to section 922 is one way section 922's firearms disability can attach, to construe section 922 as always requiring an express judicial finding would be to substitute the word "and" for the word "or" that appears at the end of 922. If Congress intended to require an express judicial finding, it would have arranged the elements as 922- and used the word "and" rather than "or" to join them. Notwithstanding the lack of textual ambiguity, ... |
| urltea.com/ec8 -> www.ca9.uscourts.gov/ca9/newopinions.nsf/661116A4ECB1A7BE88256C8600544DCB/$file/0115098.pdf?openelement The fact that the militias) Tj 0 -13 Td 336 Tw (may be ) Tj (called forth) Tj ( by the federal government only in) Tj 0 -13 Td 345 Tw (appropriate circumstances underscores their status as state) Tj 0 -13 Td 103 Tw (institutions. Article II also demonstrates that the militia were) Tj 0 -13 Td 284 Tw (conceived of as state military entities; But I stand on the general) Tj 0 -13 Td 196 Tw (principles of freedom, whereon I dare to meet any) Tj 0 -13 Td 316 Tw (one. Nevertheless, several gen-) Tj 0 -13 Td 158 Tw (eral principles may be distilled from the several \(and some-) Tj 0 -13 Td 216 Tw (times contradictory\) cases in which the Supreme Court has) Tj 0 -13 Td 12 Tw (applied the test. Rather, the retired officers) Tj 0 -13 Td 167 Tw (exception arbitrarily and unreasonably affords a privilege to) Tj 0 -13 Td 214 Tw (one group of individuals that is denied to others, including) Tj 0 -13 Td 12 Tw (plaintiffs. |
| urltea.com/ec9 -> caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/307/174.html com US Supreme Court UNITED STATES v MILLER, 307 US 174 (1939) 307 US 174 UNITED STATES v MILLER et al. Appeal from the District Court of the United States for the Western District of Arkansas. A duly interposed demurrer alleged: The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; It must be interpreted and applied with that end in view. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion. The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. XIII, affirms in reference to the early system of defense in New England- 'In all the colonies, as in England, the militia system was based on the principle of the assize of arms. Fines were the penalty for delinquency, whether of towns or individuals. According to the usage of the times, the infantry of Massachusetts consisted of pikemen and musketeers. The law, as enacted in 1649 and thereafter, provided that each of the former should be armed with a pike, corselet, head-piece, sword, and knapsack. The musketeer should carry a 'good fixed musket,' not under bastard musket bore, not less than three feet, nine inches, nor more than four feet three inches in length, a priming wire, scourer, and mould, a sword, rest, bandoleers, one pound of powder, twenty bullets, and two fathoms of match. ing a Citizen of this State, or of any of the United States, and residing in this State, (except such Persons as are herein after excepted) and who are of the Age of Sixteen, and under the Age of Forty-five Years, shall, by the Captain or commanding Officer of the Beat in which such Citizens shall reside, within four Months after the passing of this Act, be enrolled in the Company of such Beat. That every Citizen so enrolled and notified, shall, within three Months thereafter, provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock, each Cartridge containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket and Knapsack; powder, and four pounds of lead, including twenty blind cartridges; and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies. Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below. In the margin some of the more important opinions and comments by writers are cited. We are unable to accept the conclusion of the court below and the challenged judgment must be reversed. Mr Justice DOUGLAS took no part in the consideration or decision of this cause. The term 'firearm' means a shotgun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition, (The Act of April 10, 1936, c 169, 49 Stat. There shall be levied, collected, and paid upon firearms transferred in the continental United States a tax at the rate of $200 for each firearm, such tax to be paid by the transferor, and to be represented by appropriate stamps to be provided by the Commissioner, with the approval of the Secretary; and the stamps herein provided shall be affixed to the order for such firearm, hereinafter provided for. The tax imposed by this section shall be in addition to any import duty imposed on such firearm. It shall be unlawful for any person to transfer a firearm except in pursuance of a written order from the person seeking to obtain such article, on an application form issued in blank in duplicate for that purpose by the Commissioner. Such order shall identify the applicant by such means of identification as may be prescribed by regulations under (sections 1132 to 1132q) this Act: Provided, That, if the applicant is an individual, such identification shall include fingerprints and a photograph thereof. The original thereof with stamps affixed, shall be returned to the applicant. Within sixty days after the (thirtieth day after June 26, 1934) effective date of this Act every person possessing a firearm shall register, with the collector of the district in which he resides, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept, and place of business or employment, and, if such person is other than a natural person, the name and home address of an executive officer thereof: Provided, That no person shall be required to register under this section with respect to any firearm acquired after the (thirtieth day after June 26, 1934) effective date of, and in conformity with the provisions of, (sections 1132 to 1132q) this Act. It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of section (1132b or 1132c) 3 or 4 of this Act. It shall be unlawful for any person who is required to register as provided in section ( 1132d) 5 hereof and who shall not have so registered, or any other person who has not in his possession a stamp-affixed order as provided in section (1132c of this title) 4 hereof, to ship, carry, or deliver any firearm in interstate commerce. The Commissioner, with the approval of the Secretary, shall prescribe such rules and regulations as may be necessary for carrying the provisions of (sections 1132 to 1132q) this Act into effect. Any person who violates or fails to comply with any of the requirements of (sections 1132 to 1132q) this Act shall, upon conviction, be fined not more than $2,000 or be imprisoned for not more than five years, or both, in the discretion of the court. If any provision of (sections 1132 to 1132q) this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of (sections 1132 to 1132q) the Act, and the application of such provision to other persons or circumstances, shall not be affected thereby. This (chapter (1132 to 1132q)) Act may be cited as the 'National Firearms Act." |
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