October/November 2001
Web Page
  • Due to illness, a trip, computer problems, some new computer programs and setting up OCShooters.com at the new host; I was unable to do newsletter last month.  I will be trying to combine Oct. & Nov.
  • OCShooters.com sets new hit records of: 

  • Highest Day            121             05 Nov., Mon, 2001 
    Highest Week         648             Wk 45, 2001 
    Highest Month        1,511 hits    as of Nov. 19, 2001 
June   July    August   September
Other places to go to get News
SCOPE provides Current Firearms News, Updated Daily!
Plattsburgh Rod & Gun:     Regional News    &  Guns in the News
Keep and Bear Arms Homepage
     I finally broke down and registered a domain name. It is now official. All you need to do to link to Orange County Shooters is to type in OCShooters.com. It should be easier now to let people know where to find my web page.  I also bought some new web creating programs so you should see some improvements and new effects as I learn to use the new programs.  Please e-mail me and let me know what you think.



The Firearms Coalition Alerts Log, (http://www.nealknox.com/alerts/  )


3 teens arrested in Goshen with handgun
Goshen, 11/17/01 from the Times Herald-Record PG 13
   Teens charged with having handgun
   Three teen-agers from Westchester County were jailed Thursday after a state trooper found a loaded handgun in their car, police said.
   The vehicle was stopped about 1:30 p.m. for speeding in Goshen while heading west on Route 17. After smelling marijuana, a trooper searched the 2001 Dodge Neon and found 15 grams of marijuana and a loaded, .25-caliber pistol, police said.
   Arrested were Dante Beamon, 16, of White Plains; Kevin Moore, 19, of White Plains; and Keith Rogers, 19, of Mount Vernon. Beamon was the driver.
   Each was charged with second-degree criminal possession of a weapon, a felony, and unlawful possession of marijuana, a violation. They were sent to Orange County Jail after being arraigned. Rogers' bail was set at $5,000 cash; Moore and Beamon's bail was $7,500 cash.


New York Bill Would Create Advocate for Wildlife (read anti-hunting)

    Legislation filed on September 6th could greatly change the way wildlife is managed in New York by creating a new cabinet position, the Advocate of Wildlife, to advise the Governor and legislature on policies and plans that affect wildlife programs.
    Assembly Bill 9421 would allow the appointment of an Advocate of Wildlife to advise elected officials on wildlife programs and recommend legislation to protect the resource. The Advocate would conduct studies relating to the protection, conservation, and preservation of wildlife and be able to appoint officers, committees, and agents to pursue goals. The bill specifically instructs the Advocate to promote non-lethal methods of wildlife control.(emphasis mine-LRS)
    Every state, including New York, already has a department of environmental or wildlife conservation to manage wildlife and habitat. These state agencies balance the wildlife resource with the needs of the people. The proposed position basically duplicates the state agency, but with a new focus.  Assembly Bill 9421 would give the Advocate broad power that seems to supercede the state wildlife agency.
    Assembly Bill 9421 is currently under consideration in the Assembly Committee on Governmental Affairs.
Information on this website can be reprinted with a citation to WLFA and www.wlfa.org
For more information about how you can protect your rights as a sportsman, contact The Wildlife
Legislative Fund of America, 801 Kingsmill Parkway, Columbus, OH 43229. Phone (614) 888-4868.
E-Mail us at info@wlfa.org

S467 Making it illegal to wear a Bullet proof vest during a violent crime passes
    The following new law was passed and signed by the Gov. on 9/19/01 so that means that it is in effect now.
TITLE....Prohibits the wearing of a bullet proof vest during the commission of a violent offense while possessing 
a rifle or shotgun.
001-2002 Regular Sessions 
I N  S E N A T E
March 19, 2001
Introduced  by  Sen. VOLKER -- (at request of the New York State Police)
         -- read twice and ordered printed, and when printed to be committed to
         the Committee on Codes                                                
       AN ACT to amend the penal law, in relation to the  unlawful  wearing  of
         body vests                                                            
       BLY, DO ENACT AS FOLLOWS:                                               
    1    Section 1. Subdivision 1 of section 270.20 of the penal law, as  added
    2  by chapter 56 of the laws of 1984, is amended to read as follows:       
    3    1.  A  person  is  guilty  of the unlawful wearing of a body vest when
    4  acting either alone or with one or more other  persons  he  commits  any
    5  violent  felony  offense  defined  in  section  70.02 while possessing a
    6  firearm, RIFLE OR SHOTGUN and in the course of  and  in  furtherance  of
    7  such crime he wears a body vest.                                        
    8    S  2.  This  act  shall  take effect on the first day of November next
    9  succeeding the date on which it shall have become a law.
    Don't think that this is the end of it.  Now that they have this law on the books they want to move to the next step and that is to require that anyone getting a vest have it listed on a pistol license under PL 400.  No one in the Senate or Assembly voted against this bill and I see nothing wrong with it or even to add to it that someone who is not allowed to own a firearm can not own a vest unless approved by a judge but adding vest to a pistol license under PL 400 would be wrong.

Republicans and Gov. Pataki want your $$$
    The phone calls have started and fund raisers for Gov. Maio Pataki and the state part are working hard to ask you for your money.  I got my first call on Nov. 19.  I asked if the Republicans are going to have someone running for Gov. in the next election.  I told them that I give all of my money to the NRA and the NYSRPA and that if they want some that they should call them.
    I forgot to ask them if they had called Sen. H. R. C******, Sen. Schumer and others who were at the Million Mom March in Westchester where Gov. Mario Pataki was a speaker touting his new gun control laws.  The only reason that he would have been there was that he wanted the support of the MMM so call them as see how much they will support him.


from NRA-ILA FAX Alert   Vol. 8, No. 40     10/5/01
    This week, the U.S. Senate passed S. 1438, the Department of Defense (DoD) annual authorization bill, which contains a provision that is of grave concern to hunters and sport shooters. Section 1062 of this bill provides the Secretary of Defense with the authority to require "demilitarization" of any "significant military equipment" that has ever been owned by the DoD. This would include all firearms (such as the venerable M1, M1 Carbine, and Model 1911, as well as all Civilian Marksmanship Program rifles, even "sporterized" surplus bolt-action Springfields!); firearm parts such as barrels, bolts, triggers, firing pins, sights, etc.; ammunition and ammunition components; and firearm accessories such as cleaning rods, oilers, and even cleaning brushes. "Demilitarization" is the term for rendering such items permanently inoperable, and Sec. 1062 allows for this action to be carried out either by the owner or a third party, with the owner paying the cost, or by the DoD.   However, if the DoD determines it should perform the demilitarization, it can also determine that the cost of returning the demilled item is prohibitive, then simply keep the item, and reimburse the owner only for the fair market scrap value of the item.
     Furthermore, this new authority would require private citizens to determine for themselves if an item they own is subject to demilitarization, and face criminal penalties for non-compliance. The DoD would be under no obligation to notify law-abiding citizens that items they have lawfully owned for years, and perhaps that their families have owned for generations, are suddenly subject to forced demilitarization. This becomes extremely significant when one considers that U.S. military surplus has been regularly-and legally-bought, sold, and traded for centuries. Countless Americans own items that could be subject to Sec. 1062. It is likely millions of law-abiding Americans would be affected, and could unknowingly become criminals overnight without having done anything or having ever been informed.
    The DoD already has the authority and responsibility to demilitarize any item it sells as surplus, so there is absolutely no reason to seek new authority to confiscate and destroy lawfully sold and lawfully owned items that are now the property of private citizens. Be sure to contact your U.S. Senators at (202) 224-3121, and your U.S. Representative at (202) 225-3121, and urge them to strike Sec. 1062 from S. 1438, the "National Defense Authorization Act for FY 2002." The 24 members of the Senate Armed Services Committee and the 60 members of the House Armed Services Committee especially need to hear from you. To find out if any of your lawmakers are on either committee, you can use NRAILA.org`s "Write Your Reps" tool.

University asks historian to defend his research on gun ownership book

By David Mehegan, Globe Staff, 10/3/2001
    Emory University historian Michael A. Bellesiles, author of a controversial book on gun ownership in early America, has been asked by his department to write a detailed defense of his research for the book.
    The 2000 book, ''Arming America: The Origins of a National Gun Culture,'' won the prestigious Bancroft Prize for history, but a story last month in the Globe appeared to confirm a pattern of questionable research claims.
    ''What is important is that he defend himself and the integrity of his scholarship immediately,'' said James Melton, Emory history department chairman. ''Depending upon his reponse, the university will respond appropriately.''
    Melton added, ''If there is prima facie evidence of scholarly misconduct, the university has to conduct a thorough investigation. Whether it be a purely internal inquiry, or the university brings in distinguished scholars in the field, will depend on how Michael responds. It is important that he be accorded due process.''
    Bellesiles's book argued that few Americans had owned guns in early America, and that more than half of those that were owned were old or broken. The book set off a storm of protest by gun-owner organizations, but independent scholars also raised serious questions about the veracity of Bellesiles's research. The Globe story confirmed allegations that San Francisco probate records, which Bellesiles had cited in his book as one of his sources, had been destroyed in the 1906 earthquake and fire. It also confirmed that an article by Bellesiles on his Web site, defending his work, misstated the contents of some 18th-century Vermont probate records.
    Melton, in a telephone interview yesterday, said, ''I advised him that he needed to find a public professional forum where he would give a full and complete response to the allegations against him.'' Melton's letter to Bellesiles asked for ''a detailed point by point response.''
    Bellesiles, responding by e-mail to a request for comment by the Globe, confirmed he will write a response in the quarterly newsletter of the Organization of American Historians. He wrote, ''I am trying to treat errors in an honest, scholarly, and non-confrontational form.''
    David Mehegan can be reached by e-mail at d-mehegan@globe.com.
This story ran on page C5 of the Boston Globe on 10/3/2001. © Copyright 2001 Globe Newspaper Company.

F.O.P. Says Let Police Carry Firearms Nationwide

    Steve Young, president of the Fraternal Order of Police, urges the Bush Administration to include H.R. 218, the "Community Protection Act," enabling qualified active and retired law enforcement officers to carry their firearms when traveling outside their own jurisdiction into legislation aimed at improving public safety. "For too long, this has been considered to be a 'firearms issue,'" Young said. "If it ever was just a 'firearms issue' it certainly is that no longer. On Sept. 11, 2001, it became a critical public safety issue."

F.O.P. Says Let Police Carry Firearms Nationwide,U.S. Newswire

Conn. Supreme Court Upholds Dismissal Of Bridgeport Lawsuit

Connecticut's Supreme Court unanimously dismissed Bridgeport's lawsuit against gun makers Oct. 1, saying the city had no legal standing to sue and that none of the city's arguments withstood judicial scrutiny.

Guns and criminals: More gun laws = more thugs with guns
from the UNION LEADER, http://www.theunionleader.com/articles_show.html?article=6500
    FOR THE umpteenth time, a national study has found that gun control laws don’t work. The verification of this fact is getting to be one of life’s predictable occurrences, like the migration of monarch butterflies or the late-season choking of the Boston Red Sox.
    The latest in this constant flow of data showing the futility of gun-control laws comes from a national survey of prisoners by the United States Bureau of Justice Statistics. The survey found that more convicted criminals used guns in the commission of their crimes after the passage of tough gun-control laws in the 1990s than before.
    In 1991, 16 percent of state prisoners used guns while committing the crimes that landed them in prison. In 1997 the number was 18 percent. The comparable numbers for federal prisoners were 12 percent in 1991 and 15 percent in 1997.
    The Brady Bill, which requires background checks for gun purchases, was passed in 1993. Other gun-control laws made their way onto the books in the 1990s, and that decade also saw an increase in the number of other futile gun-control measures such as gun buy-back programs.
    But in the end, more criminals had more guns and used them in more crimes. How did this happen? Well, the Bureau of Justice Statistics survey found that when criminals couldn’t buy weapons themselves, they acquired them from friends and relatives. The percentage of state prison inmates who bought a gun at a store, pawn shop or flea market fell from 21 percent in 1991 to 14 percent in 1997. In that meaningless way, the Brady Bill has worked. It has reduced the number of gun purchases by criminals at traditional retail outlets.
    But during the same period, the percentage of criminals who got guns from friends or family members rose from 34 percent to 40 percent, making the Brady Bill a dismal failure in keeping criminals from obtaining guns.
    The only way to keep guns away from criminals is to eliminate guns, which of course is impossible because you can’t uninvent a technology. Firearms, like rock ‘n’ roll, are here to stay.
    The most effective way to reduce gun-related crime is to ensure that citizens have the right to arm themselves. The effectiveness of concealed carry laws has been scientifically documented as firmly as has the failure of gun-control laws. If only the anti-gun nuts would wake up and smell the gunpowder.

ALSO SEE: Justice Department Report Contradicts Anti-Gun Claims

McCain using 9/11 to push for more gun control/ gun show check
    Sen. Turncoat McCain is using the events of 9/11 to push for more gun control.  The proposal is also sponsored by Democratic Senators Joe Lieberman and "UpChuck" Charles Schumer.  While many do support NICS checks being done at all gun shows, no one supports all of the paperwork, red tape rules, record keeping and 3 day for a check to be completed that are part of the current proposals.  NY has a required NICS check at all gun shows and it has not been a problem because the new law left out all of the requirements included in the federal proposals.  NY just states that if it is sold at a gun show it has to be checked and that any FFL holder at a show must do the check if asked.  No record keeping, no required licenses, no storage of records, ...
    Remember that the federal law would have been passed a long time ago except some pro-gun Democrats agreed with most of the pro-gun Republicans that the proposed law's main aim was to end gun shows, not to reduce criminals buying guns at guns shows.
McCain: Terrorists bypass laws by using gun shows, By Susan Page, USA TODAY
WASHINGTON — Sen. John McCain says he will force Senate consideration of a controversial gun control measure early next year bolstered by a newly powerful argument: Foreign terrorists have exploited a loophole to buy weapons at gun shows while bypassing federal background checks.
    "Clearly, alleged members of terrorist organizations have been able to secure guns and weapons using the gun show loophole," McCain, R-Ariz., said ...

Fall out from 9/11
    from: http://www.boortz.com/nealznuz.htm
    From the pages of Roll Call we see that several members of Congress--including some who favor strict gun control--are looking to buy guns and get trained in their use.  They want to be able to protect themselves and their families.
    Hmm...maybe they're finally starting to see the light here.  If people on those four hijacked aircraft had been armed, then maybe September 11
wouldn't have etched itself so permanently into every American's memory.  Then again, these gun grabbers are the kinds of people who would have demanded a ban on guns if the terrorists had used guns instead of box-cutters.  We've seen their type before.  Dianne Feinstein has a permit to carry a concealed weapon--yet she's one of the premier hoplophobes* (fantastic, a new word!!!) pushing gun control in the Senate.  Several celebrities, including Rosie O'Donnell, make a name for themselves calling for gun control "for the children's sake"--but enjoy the security provided by their armed bodyguards.  In their elitist view, only celebrities and politicians should be able to arm themselves--but not the single mother who lives in the inner city.  They may see the need to protect themselves--but will they view self-defense through the eyes of an ordinary American?  I'm not holding my breath.  (*Term used to describe those who have an irrational fear of weapons.)
"Several lawmakers described colleagues - including some advocates of strict controls on handguns - who are now seeking firearms training in hopes of protecting themselves if the need should arise."
Americans Arm Themselves, Gun Dealers Report Many Sales to First-Timers
For Many Without Guns, Attack Was a Call to Arm, By Yuki Noguchi, Washington Post Staff Writer
SPECIAL ALERT FOR PHILADELPHIA PREDATORS, apps for new CCWs up 51.8 percent in 2 week period following 9/11
Since Sept. 11, Women Are Taking Protection Into Their Own Hands, the Tampa Tribune
For Many Without Guns, Attack Was a Call to Arm, The Washington Post

BATF has not received mail since October 25

Open Letter to all Federal Firearms Licensees and Federal Explosives Licensees and Permittees
    This is to notify you that the Bureau of Alcohol, Tobacco and Firearms (ATF) has not received mail since October 25, 2001. Correspondence that has been affected by this situation includes applications for importation of firearms, explosives, and implements of war, National Firearms Act registrations and transfers, and all other written correspondence.

US Supreme Court Won't Hear N.J. Weapons Case
(ORDER LIST: 534 U.S.)

    And so ended the appeal of the NJ assault weapons ban.  NJ has one of the worse AWBs because it included guns legally purchased and owned and guns that in no way were AWs.  Any 22 rifle with a tube feed that would hold more than 15 rounds of  22 cal.  Short were banned.  (NJ is also know for its ban of all hollow point ammo.)  While this is not what we would like it still is not the end of the world.  The court could feel that the topic is not "RIPE" or that this is not  the best case.  It could also be waiting to see how the federal AWB turns out in 2004 when it comes up for renewal.
    The ban, enacted in 1991, forbids the possession, sale or transport of assault weapons or large-capacity ammunition clips. The law applied retroactively to guns purchased before the law was passed.
    A group led by the Coalition of New Jersey Sportsmen argued the law is unconstitutional because it is vague in describing the guns to be banned, focuses on brand names displayed on guns and forces people to join a target shooting club to qualify for an exemption. New Jersey's law listed 37 models by name but also covered others that are ``substantially identical'' to any on the list.

Court Won't Hear N.J. Weapons Case, By LAURENCE ARNOLD, Associated Press Writer
Supreme Court Rejects Challenge to Assault Weapon Ban, Rueters.com
     The failure of the Supreme Court to take up the case and other similar cases does not help us.  It will mean that the antig-unners will be able to say that present AWB laws have not been repealed and that it is OK for the NY legislature to ban guns that we already own like NJ did.  It also means that when the federal AWB, ([18 U.S.C. 922(v)]), comes expires on, (I think),  Sept. 13, 2004 the debate will not be limited by a ruling that banning of previously owned so called AWs is illegal so banning legally owned guns will be a major topic.  Because the AWB expires in Sept., if a new law is not passed it will be a big topic in the Presidential elections.  Even if a law is passed the anti-gunners will still say that we did not go far enough.  We still need someone to stand up for our rights.

NRA FACT SHEET: "Assault Weapons" & Semi-Autos

NJ Court affirms dismissal of Camden County, (NJ) gun lawsuit
(Or another one bites the dust.)
from Inquirer, philly.com nov 17, 2001

    A federal appeals court in Philadelphia yesterday affirmed last year's decision by a federal judge dismissing Camden County's "public nuisance" lawsuit against 21 firearms manufacturers and dealers seeking restitution for the costs of gun violence.
    In an unsigned but unanimous opinion, the three-judge panel of the U.S. Court of Appeals for the Third Circuit wrote that the lawsuit was filed under New Jersey's public-nuisance statute and that a federal court had no authority to "expand or narrow state law in ways not foreshadowed by state precedent. Here, no New Jersey precedents support the county's public-nuisance claim or provided a sound basis for predicting that the Supreme Court of New Jersey would find that claim to be valid."
    The Camden County lawsuit was one of a series of suits against firearms companies since 1999 in an effort to force the gun makers to incorporate safety features in firearms. Last year Philadelphia officials dropped a similar lawsuit after Smith & Wesson, the nation's largest firearms maker, agreed to produce safer weapons.

Additional info from Law.com, Nov. 19, 2001

    In a major victory for gun manufacturers, the 3rd U.S. Circuit Court of Appeals on Friday upheld the dismissal of a suit brought by Camden County, New Jersey, that accused gun makers of creating a "public nuisance" and sought to recoup the governmental costs associated with gun-related crimes.
    "Whatever the precise scope of public nuisance law in New Jersey may be, no New Jersey court has ever allowed a public nuisance claim to proceed against manufacturers for lawful products that are lawfully placed in the stream of commerce," the unanimous three-judge panel said ...

In response, defense lawyers argued that the factual allegations amounted to an "attenuated" chain of events.
To link the manufacturers to the nuisance of gun crimes, they said, the county has to take seven steps:
• The manufacturers produce the firearms.
• They sell the firearms to federally licensed distributors.
• Those distributors sell them to federally licensed dealers.
• Some of the firearms are later diverted by unnamed third parties into an illegal gun market, which spills into Camden County.
• The diverted firearms are obtained by unnamed third parties who are not entitled to own or possess them.
• Those firearms are then used in criminal acts that kill and wound county residents.
• And finally, this harm causes the county to expend resources to prevent or respond to those crimes.

    As a result, defense lawyers said, the manufacturers are six steps removed from the criminal end-users. And the fourth link in this chain, they said, consists of acts committed by intervening third parties who divert some handguns into an illegal market.
    Now the 3rd Circuit has sided completely with the gun manufacturers.


    The Brady Campaign has fallen on hard times and has issued a special call for contributions or they will have to lay off even more staff.  Saying that we are at even more peril than before and that "There is compelling evidence that terrorists are stockpiling high-powered weapons and ammunition obtained from unregulated gun markets in this country, such as gun shows." Sara is calling for even more gun control that ever.  More select readings from Sara'a letter:
November 8, 2001
Dear Friends,
     Regretfully, I must report to you that in the aftermath of the September 11 terrorist attacks on America, we have been forced to make significant cut backs in our programs, threatening our ability to fight for a safer America. ...
    ...  the Brady Campaign is aggressively pushing for new legislation to add three gun safety measures to anti-terrorist efforts being undertaken by Congress and the Justice Department.
     This is our immediate agenda, and I must tell you that that our financial shortfall is seriously jeopardizing our ability to meet this challenge. In fact, as a part of our forced downsizing and restructuring, we have been forced to lay off approximately 20 percent of our staff.
     Meanwhile, the National Rifle Association, with its deep pockets, continues to try to exploit the September terrorist attacks as a reason to buy more guns. But, we cannot let the gun lobby win the day.
     We cannot let the terrorists intimidate us, nor let the NRA and the gun industry win. We must move forward. And to do that, we are dependent upon you and all of our members and supporters. Thank you for your helping during these difficult times.
CLICK ON THE TOPIC TO SEE Other related readings:
Bummer for Sarah Brady in the WSJ
Pity the Anti-gun Lobby on NewsMax.com

U.S. v. Emerson Ruling Is In - Celebrate -- With Reservations

by John G. Lankford, October 16, 2001

    The Fifth Circuit's ruling in U.S. v. Emerson, released today, gives proponents of the individual right to keep and bear arms reason to cheer. But not quite as much reason as many may think.
    Evaluation of the import of judicial decisions and their supporting opinions begins with the premise that the narrowest possible meaning be attributed.
    In this case, the Fifth Circuit stated that the Second Amendment right to keep and bear arms free of federal infringement was indeed personal rather than one allocated to states, or to individuals only when actually participating in the business of a state-organized militia, now, for all practical purposes, the National Guard.
    But, despite the Court's couching its conclusion following its extensive analysis of that issue as a "holding", it was in fact "obiter dictum", observations on the law not strictly necessary to decide the case.
    The Court held against Mr. Emerson. It reversed the District Court which had dismissed the charge against him. That court dismissed on the grounds that Mr. Emerson's right to keep and bear arms was personal, and the federal statute under which he was charged could not be allowed to infringe that right under the circumstances his case presented.
    Reversing, the 5th Circuit agreed that his Second Amendment right to keep and bear arms was personal, but that, under the circumstances, the federal statute he was held to have violated could Constitutionally  incriminate him.
    In other words, the 5th Circuit could have said,

"It does not matter whether the Second Amendment protects for Mr. Emerson a personal right to keep and bear arms. If it does not, the statute may operate and his conviction is valid. If it does, under the circumstances presented, the statute does not present a Constitutionally impermissible infringement on that right, and his conviction is valid nevertheless."
    Many who absorb the rationale of the Emerson decision will be angry, offended that what appear minimalistic and legalistic transgressions have been held to suffice to deprive Mr. Emerson of a Constitutional right the Court confesses is his. Their indignation will be similarly displaced.
     The case, as the 5th Circuit left it, fairly begs for an appeal by Emerson to the United States Supreme Court. The 5th Circuit indicates a desire not to establish its opinion as federal law only in the states its jurisdiction encompasses, but nationwide. Only by getting its opinion reversed by the United States Supreme Court, specifically on grounds that the case's circumstances do not suffice to deprive Mr. Emerson of his Second Amendment right, can it do so.
    Without, in this brief comment, tracing the fine points involved in that question, that appears to be what the 5th Circuit sets about doing.  Very generally and not all-inclusively, the question whether Emerson's circumstances suffice to allow the federal statute to deprive him of his Second Amendment right addresses itself to a very subtle and nebulous area of the law, that of whether Emerson received due process of law under the Fifth Amendment. An even greater level of complexity is
imposed by the fact that the answer may involve a maddening doctrine that has borne various labels while inflicting innumerable headaches on lawyers and jurists, but is generally called "substantive due process."
    "Substantive due process" asks not only whether a defendant's conviction resulted from application of the pertinent written laws, but also whether those laws are at least minimally fair ones.
    This is a standard the Supreme Court tends to resolve on a case-by-case basis, protestations of consistency notwithstanding. Accordingly, it tends to reserve disposition of cases involving "substantive due process" and important enough to warrant attention, to its own disposition.
    Assuming, as it appears, it is eyeing an appeal to the Supreme Court, and hopes its Second Amendment view will be adopted as rationale, not simply obiter dictum, and thus hopes to be reversed on the due-process or "substantive due process" element of the case, the opinion rendered not only virtually guarantees an appeal by Emerson, but also shrewdly leaves the due-process issue (or substantive-due-process issue) to the Supreme Court, while making a formidable, possibly irrebuttable argument for its (the 5th Circuit's) view of the Second Amendment's meaning.
    Of two close and hard issues, it took the easier and left the harder to be resolved by its superiors. In doing so, however, the 5th Circuit virtually begged the Supreme Court for a reversal of its due-process holding. It held that the Texas statutes involved just barely satisfied due process requirements, and even declared itself uneasy with that decision. Indeed, its reasoning included a rather blatant and vulnerable boost to the due process sufficiency of the statutory scheme, holding that a finding Mr. Emerson must have presented a danger to his estranged wife, or child, or presented them a realistic fear of danger, because Texas law tells Texas courts not to issue anti-stalking-and-harassment injunctions unless they so find.
    That is a patent reach, essentially holding that because the Texas court decided as it did, issuing the order that triggered the federal statute under which Emerson was charged and convicted, then the Texas court must have been right. It was on this shaky point, not the District Court's Second Amendment ground, that the 5th Circuit reversed -- and invited the Supreme Court to reverse in turn.
    At this time, since the 5th Circuit's Second Amendment rationale is, strictly speaking, obiter dictum rather than rationale dictating the result reached, nobody within the states the 5th Circuit's jurisdiction encompasses should exercise Second Amendment rights based on the decision. Certainly, no one from other states should do so -- at least, a law-school-graduate but practice-retired, unlicensed commentator should add, not without precise advice of a competent, licensed attorney at law.
    But for the moment, advocates of individual rights to keep and bear arms should celebrate a significant academic victory, and wait with patience and improved hopes to see whether the Supreme Court will so dispose of the due-process issue as to make it settled law nationwide.

  Times Herald-Record