Significance of Emerson in Texas

This is a discussion on Significance of Emerson in Texas within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; I was reading the ruling in US vs Emerson by the 5th Circuit Court of Appeals. In 2001, the court ruled against Emerson, but for ...

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Thread: Significance of Emerson in Texas

  1. #1
    Senior Member Array dldeuce's Avatar
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    Significance of Emerson in Texas

    I was reading the ruling in US vs Emerson by the 5th Circuit Court of Appeals. In 2001, the court ruled against Emerson, but for an individual rights interpretation of the 2nd amendment. It seems that in Texas, we've had the basis for Heller since 2001.

    I've been frustrated by Texas CHL policy in that I've received a letter from the Texas DPS stating that my CHL application has been indefinitely delayed due to hurricane IKE. I've been venting about this elsewhere, and I was told that the provisions of Texas CHL law and it's implementation can't be challenged against the 2nd amendment because we don't have the precedence or whatever. For example, we don't have incorporation under the fourteenth amendment.

    It seems to me that this isn't true in the 5th circuit jurisdiction after Emerson. At the current time, Texas is indefinitely prohibiting some Texas citizens from carrying a handgun in public under any circumstances. My question, as a complete legal layman, is why should we tolerate this? Why doesn't someone file a lawsuit challenging the indefinite delay associated with IKE, lengthy delays under normal circumstances for all of 2008, the high cost of registration and training, what I perceive as unconstitutional provisions such as denial for default student loans and taxes, and probably quite a few other reasons?

    In Emerson, we already have a ruling that contradicts the collective rights interpretation that all of these laws were based upon. It says:

    Second Amendment protects individual rights

    "We reject the collective rights and sophisticated collective
    rights models for interpreting the Second Amendment. We hold,
    consistent with Miller, that it protects the right of individuals,
    including those not then actually a member of any militia or
    engaged in active military service or training, to privately
    possess and bear their own firearms, such as the pistol involved
    here, that are suitable as personal, individual weapons and are not
    of the general kind or type excluded by Miller. However, because
    of our holding that section 922(g)(8), as applied to Emerson, does
    not infringe his individual rights under the Second Amendment we
    will not now further elaborate as to the exact scope of all Second
    Amendment rights."

    "We conclude that the phrase “bear arms” refers generally to
    the carrying or wearing of arms. It is certainly proper to use the
    phrase in reference to the carrying or wearing of arms by a soldier
    or militiaman; thus, the context in which “bear arms” appears may
    indicate that it refers to a military situation, e.g. the
    conscientious objector clauses cited by amici supporting the
    government. However, amici’s argument that “bear arms” was
    exclusively, or even usually, used to only refer to the carrying or
    wearing of arms by a soldier or militiaman must be rejected."

    What's missing? Why couldn't a case be filed challenging that Texas is unconstitutionally infringing the right of the people to keep and bear arms, and why wouldn't that case win under existing case law?

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    Distinguished Member Array Reborn's Avatar
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    My question is Why don't you file the law suit.......since you feel so strongly that you feel your rights are being violated.
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    Senior Member Array dldeuce's Avatar
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    I don't have the money to file a lawsuit, and the issue for this thread is the concept that even if I did, it would be futile.

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    VIP Member Array farronwolf's Avatar
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    If you want to carry a gun that bad right now, then do it. Get yourself a shotgun or rifle, and walk down the street. It is perfectly legal, you don't need any permit for that. If you want to carry a pistol, wait for your permit, or break the law. It is your choice.
    Just remember that shot placement is much more important with what you carry than how big a bang you get with each trigger pull.
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    You can get a Florida (or Utah) permit; isn't it honored by Texas ?
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    Senior Member Array press1280's Avatar
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    Quote Originally Posted by dldeuce View Post
    I was reading the ruling in US vs Emerson by the 5th Circuit Court of Appeals. In 2001, the court ruled against Emerson, but for an individual rights interpretation of the 2nd amendment. It seems that in Texas, we've had the basis for Heller since 2001.

    I've been frustrated by Texas CHL policy in that I've received a letter from the Texas DPS stating that my CHL application has been indefinitely delayed due to hurricane IKE. I've been venting about this elsewhere, and I was told that the provisions of Texas CHL law and it's implementation can't be challenged against the 2nd amendment because we don't have the precedence or whatever. For example, we don't have incorporation under the fourteenth amendment.

    It seems to me that this isn't true in the 5th circuit jurisdiction after Emerson. At the current time, Texas is indefinitely prohibiting some Texas citizens from carrying a handgun in public under any circumstances. My question, as a complete legal layman, is why should we tolerate this? Why doesn't someone file a lawsuit challenging the indefinite delay associated with IKE, lengthy delays under normal circumstances for all of 2008, the high cost of registration and training, what I perceive as unconstitutional provisions such as denial for default student loans and taxes, and probably quite a few other reasons?

    In Emerson, we already have a ruling that contradicts the collective rights interpretation that all of these laws were based upon. It says:

    Second Amendment protects individual rights

    "We reject the collective rights and sophisticated collective
    rights models for interpreting the Second Amendment. We hold,
    consistent with Miller, that it protects the right of individuals,
    including those not then actually a member of any militia or
    engaged in active military service or training, to privately
    possess and bear their own firearms, such as the pistol involved
    here, that are suitable as personal, individual weapons and are not
    of the general kind or type excluded by Miller. However, because
    of our holding that section 922(g)(8), as applied to Emerson, does
    not infringe his individual rights under the Second Amendment we
    will not now further elaborate as to the exact scope of all Second
    Amendment rights."

    "We conclude that the phrase “bear arms” refers generally to
    the carrying or wearing of arms. It is certainly proper to use the
    phrase in reference to the carrying or wearing of arms by a soldier
    or militiaman; thus, the context in which “bear arms” appears may
    indicate that it refers to a military situation, e.g. the
    conscientious objector clauses cited by amici supporting the
    government. However, amici’s argument that “bear arms” was
    exclusively, or even usually, used to only refer to the carrying or
    wearing of arms by a soldier or militiaman must be rejected."

    What's missing? Why couldn't a case be filed challenging that Texas is unconstitutionally infringing the right of the people to keep and bear arms, and why wouldn't that case win under existing case law?
    Nevermind Emerson or the 14th Amendment or any of that. Texas has a RKBA amendment already.
    Texas: Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.
    If you want to carry in Texas, go to Handgunlaw.us,look under non-resident permits,download and apply for a Pennsylvania non-resident permit. $26 for 5 years and it should take 2-3 weeks. Problem solved
    I'd save the lawsuits for the New Jerseys,Californias and New Yorks.
    "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
    Nunn v. State GA 1848

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    Ex Member Array DOGOFWAR01's Avatar
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    Contact all of the following NRA, GOA, SAF, SAS, RKBA, JPFO, and your own Texas State Rifle Association- let them file the lawsuit - as a.k.a Class Action. Push in all directions - separately. Good Luck. Any Texan with any concern for gun rights should be a member of all these organizations.

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    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by farronwolf View Post
    If you want to carry a gun that bad right now, then do it. Get yourself a shotgun or rifle, and walk down the street. It is perfectly legal, you don't need any permit for that. If you want to carry a pistol, wait for your permit, or break the law. It is your choice.
    No, sorry, that just won't do. I want the most common weapon used for self defense. I don't want to accept that Texas is denying me access to a whole class of weapons.

  10. #9
    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by press1280 View Post
    Texas has a RKBA amendment already.
    Texas: Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.
    Yeah, well, that's like the fox guarding the hen house. It's circular logic. They can regulate, and by definition the regulation defines lawful defense.

    If you want to carry in Texas, go to Handgunlaw.us,look under non-resident permits,download and apply for a Pennsylvania non-resident permit. $26 for 5 years and it should take 2-3 weeks. Problem solved
    I'd save the lawsuits for the New Jerseys,Californias and New Yorks.
    Thanks for that. I'll look into it. I've still got a beef against Texas. It makes me even madder that another state will recognize my rights. Texas will allow me to carry a concealed handgun without all this bureaucratic nonsense. They just won't be the one to issue the permit. This seems to me to be another case against all their regulation. They obviously don't have a compelling state interest to infringe my right if they accept me bypassing all their regulation and getting the permit through another state.

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    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by DOGOFWAR01 View Post
    Contact all of the following NRA, GOA, SAF, SAS, RKBA, JPFO, and your own Texas State Rifle Association- let them file the lawsuit - as a.k.a Class Action. Push in all directions - separately. Good Luck. Any Texan with any concern for gun rights should be a member of all these organizations.
    I've been looking into this all day. I've spoken with the president of the TSRA. They seem to be more concerned with the legislature, their active involvement in politics, and resting on the laurels of what they've already accomplished. That's no small task by any means, but I'm not satisfied with being denied a CHL indefinitely. That's what all the work they've done has gotten me.

    He commented that these laws were passed as a "benefit" to citizens. I don't think it struck the same chord with him that with the recent rulings, we don't have to be satisfied with that any longer. My constitutional rights are not a benefit I get from Texas legislators.

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    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by press1280 View Post
    I'd save the lawsuits for the New Jerseys,Californias and New Yorks.
    Why should we in Texas sit back and wait for California to fight for our gun rights?

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    Senior Member Array press1280's Avatar
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    Quote Originally Posted by dldeuce View Post
    I've been looking into this all day. I've spoken with the president of the TSRA. They seem to be more concerned with the legislature, their active involvement in politics, and resting on the laurels of what they've already accomplished. That's no small task by any means, but I'm not satisfied with being denied a CHL indefinitely. That's what all the work they've done has gotten me.

    He commented that these laws were passed as a "benefit" to citizens. I don't think it struck the same chord with him that with the recent rulings, we don't have to be satisfied with that any longer. My constitutional rights are not a benefit I get from Texas legislators.
    Maybe you should call them and say,"Hey, I got this letter stating things would be on hold indefinitely, and I'd like to go ahead and cancel my application and get my money back, I got a permit from another state that Texas recognizes so I'm good now."
    When they stop getting the $$, you may see things change faster.
    "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
    Nunn v. State GA 1848

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    Ex Member Array DOGOFWAR01's Avatar
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    NRA has the most resources and Lawyers. Call the NRA spend 15 minutes on the phone.

    Some Texans are proud of their CHL limitations - conceal only and no open carry, requires a state certified instructor for training, and the list goes on. Some are very "PC", some like the control, some like the dero they make, some like their job security - paid or volunteer !

    The way I read the SECOND AMENDMENT - maybe others see these words I do not - such as "conceal", "open", "permit", "license", "training", etc ...

    Keep and Bear Arms - anytime, anyplace, anything. PERIOD.

    No State is 100% SECOND AMENDMENT. Vermont, Alaska, Montana, Wyoming, Idaho, Virginia, and others are more gun friendly states than Texas.

    20 plus years in Texas and by far most of those 20 years well before the huge slam against the SECOND AMENDMENT - 1968 Gun Control Act.

    With relatives still living in Texas.

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    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by press1280 View Post
    Maybe you should call them and say,"Hey, I got this letter stating things would be on hold indefinitely, and I'd like to go ahead and cancel my application and get my money back, I got a permit from another state that Texas recognizes so I'm good now."
    When they stop getting the $$, you may see things change faster.
    You know, I thought about that. I know it's going to exceed 90 days. For many, it already has before they got the letter. I thought the law said they had to process the application in 90 days. Sounds kind of like a binding agreement that they've broken. Having them give me my money back would be at least some consolation.

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    Senior Member Array dldeuce's Avatar
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    Quote Originally Posted by DOGOFWAR01 View Post
    NRA has the most resources and Lawyers. Call the NRA spend 15 minutes on the phone.
    I'll give it a try.

    Some Texans are proud of their CHL limitations - conceal only and no open carry, requires a state certified instructor for training, and the list goes on. Some are very "PC", some like the control, some like the dero they make, some like their job security - paid or volunteer !
    We still have the Jim Crow laws. I'm sure the educated white people with money still love them. Even taking away the race issue, which I think is still valid, I'm sure some people love being part of a group that is afforded "benefits" from the state that others are not. Benefits for those that deserve them is great. We can't go around giving just any people rights.

    The way I read the SECOND AMENDMENT - maybe others see these words I do not - such as "conceal", "open", "permit", "license", "training", etc ...

    Keep and Bear Arms - anytime, anyplace, anything. PERIOD.
    Nor do I see any mention of any differentiation between keep and bear arms in public as compared to private. In Heller, the SC said it's an individual right, and no, you can't deny that right in the home. I don't think we need a second SC decision to say that Texas can't deny that right in public.

    No State is 100% SECOND AMENDMENT. Vermont, Alaska, Montana, Wyoming, Idaho, Virginia, and others are more gun friendly states than Texas.
    Gun owners in every state should be challenging these laws in court, even if California is more restrictive. I don't see any reason why anyone should be satisfied with being denied their constitutional rights because some other state does it more blatantly. I sure see that attitude a lot. Where is the flood of lawsuits I heard about when Heller was announced?

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