Re: [SLUG-POL] Emerson synopsis

From: R P Herrold (herrold@owlriver.com)
Date: Wed Oct 17 2001 - 20:58:24 EDT


On Wed, 17 Oct 2001, Paul M Foster wrote:

> > > --U.S. v Emerson, 5th Circuit Federal Court
> > > published October 16, 2001
> >
> > The Fifth (federal) Circuit seems to have issued an Opinion
> > yesterday. I am looking for full text; this extract was forwarded
> > into a local RTKBA list without further citation.
> >
>
> Yesssssss!

... well, not exactly ... I located the full opinion (runs
about 40 singlespaced pages), and it is 2:1 split -- Emerson
LOSES and the trial court's prior dismissal on 2d Amdt grounds
is overturned. Commerce clause arguments are treated as
abandoned/not proven on Emerson's part; Emerson seems to have
waived/lost part of his factual defence by appearing pro se at
the TRO hearing and not contesting a witness' statement under
oath that he had threatened to kill a third party.

The dissent is more pro-RTKBA than the majority, and
(properly) points out that the decision may well do more harm
than good to the concerns of liberty.

If I was Emerson's lawyer, I'd probably ask for a rehearing
before the whole 5th Cir. -- _en banc_ as it is called -- and
roll the dice again, before having to go try my case at the
trial level.

There is probably NOT enough to induce the Supreme Court to
hear the matter on cert.

-- Russ



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