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
"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?