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Alerts Log

Circuit Court Asks Great Questions

     5:30 p.m. June 13 Neal Knox Report -- "The Court really beat
up on the government" Linda Thomas of Houston ecstatically told me
a few minutes ago.

     She was on a cell phone, standing on the steps of Fifth
Circuit Court of Appeals in New Orleans.  A three-judge panel had
just heard oral argument in the Emerson case, in which Lubbock,
Texas, Federal Judge Sam Cummings struck down part of the 1996
Lautenberg Amendment prohibiting persons under a restraining order
from possessing firearms.

     The government prosecutor said the Second Amendment only
applied to arms issued to militia members, in Dr. Timothy Emerson's
case either the Texas National Guard or Texas State Guard.  Judge
Harold R. DeMoss, Jr., a George Bush appointee, told him he was
misreading the 1939 Miller case.

     The court held in Miller that there had been no evidence that
Miller's sawed-off shotgun was a militia-type arm.  Nothing was said about
the gun having to have been issued.

     Judge DeMoss asked the prosecutor if Dr. Emerson's Beretta 92
9mm pistol isn't the type used by armies.  Of course, it's the
standard U.S. sidearm.

     Judge DeMoss also raised a critical question that addresses
the Tenth Amendment.  "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."

     All Federal gun laws are based on the power of the Congress to
regulate interstate commerce.  The present Supreme Court has struck
down several laws in a series of narrow decisions based on the
Tenth Amendment's stipulation that powers not specifically
delegated to Congress "are reserved to the states and the people,

     Judge Robert M. Parker, appointed by President Carter, and to
the appellate court by President Clinton, told the government:  "I
don't want you to lose any sleep over this, but Judge Garwood (the
senior judge) and I between us have enough guns to start a
revolution in most South American countries."

     Linda, a gun rights activist who has just finished law school
and is preparing for the bar exam, said the folks on our side of
the aisle "are all smiles."

     Unlike most firearms-related court cases, there was no
reluctance to discuss the Second Amendment, and, Linda said, the
judges had done their homework.  "It was like sitting in on a Gun
Rights Policy Conference legal seminar."

     One thing about it, Timothy Emerson's case is going to have a
full and fair hearing.  And so will the Second Amendment.

     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.

     That's just one more reason to make certain that Al Gore isn't
in a position to appoint Supreme Court justices.

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