Quite a number of us have been following the U.S. v. Emerson court case pertaining to the Second Amendment. Therein, the federal trial court judge wrote one of the finest decisions ever to come out of a federal criminal court -- which tracked perfectly with the opinions of all of the Founding Fathers.

Well, we can't have any of that "Original Intent" stuff anymore, so the federal government appealed. And finally, on October 16, the U.S. Fifth Circuit Court of Appeals came out with an opinion.(1)

Because of the fine decision written by District Judge Sam Cummings at the trial court level, the Appeals Court had to track along with strictly historical material. The end result was that the opinion was not entirely good for Emerson. Still, there is a lot of very good red meat in there with those potatoes and this is one opinion that will be studied and quoted for many years to come.

Below is an excerpt from Section 9, the Analysis. This is, in effect, a synopsis of what drove the Court's thinking in this case.

The history we have recounted largely speaks for itself. We briefly summarize. The Anti-Federalists desired a bill of rights, express provision for increased state power over the militia, and a meaningful express limitation of the power of the federal government to maintain a standing army. These issues were somewhat interrelated. The prospect of federal power to render the militia useless and to maintain a large standing army combined with the absence of any specific guarantees of individual liberty frightened Anti-Federalists. But the Anti-Federalist complaint that resonated best with the people at large was the lack of a bill of rights.

In mid-1788 the Constitution was ratified unchanged and in the spring of 1789 the Federalists gained control of both houses of the First Congress. Hard core Anti-Federalists persisted in all three demands, but more moderate Anti-Federalists and the people at large were primarily focused on securing a bill of rights. Most Federalists were not really averse to a bill of rights, but, like James Madison himself, had been forced to oppose any modifications to the Constitution since it could only be ratified unchanged. The Federalists wanted to please the Anti-Federalists as much as possible without fundamentally altering the balance of federal-state power. James Madison plainly stated this goal when he submitted his proposed amendments to the House.

Given the political dynamic of the day, the wording of the Second Amendment is exactly what would have been expected. The Federalists had no qualms with recognizing the individual right of all Americans to keep and bear arms. In fact, as we have documented, one of the Federalists' favorite 1787-88 talking points on the standing army and federal power over the militia issues was to remind the Anti-Federalists that the American people were armed and hence could not possibly be placed in danger by a federal standing army or federal control over the militia. The Second Amendment's preamble represents a successful attempt, by the Federalists, to further pacify moderate Anti- Federalists without actually conceding any additional ground, i.e. without limiting the power of the federal government to maintain a standing army or increasing the power of the states over the militia.

This is not to say that the Second Amendment's preamble was not appropriate or is in any way marginal or lacking in true significance. Quite the contrary. Absent a citizenry generally keeping and bearing their own private arms, a militia as it was then thought of could not meaningfully exist. As pointed out by Thomas Cooley, the right of individual Americans to keep, carry, and acquaint themselves with firearms does indeed promote a well- regulated militia by fostering the development of a pool of firearms-familiar citizens that could be called upon to serve in the militia. While standing armies are not mentioned in the preamble, history shows that the reason a well-regulated militia was declared necessary to the security of a free state was because such a militia would greatly reduce the need for a standing army. Thus, the Second Amendment dealt directly with one of the Anti- Federalists' concerns and indirectly addressed the other two. While the hard core Anti-Federalists recognized that the Second Amendment did not assure a well-regulated militia or curtail the federal government's power to maintain a large standing army, they did not control either branch of Congress (or the presidency) and had to be content with the right of individuals to keep and bear arms.

Finally, the many newspaper articles and personal letters cited indicate that, at the time, Americans viewed the Second Amendment as applying to individuals. This is confirmed by the First Congress's rejection of amendments that would have directly and explicitly addressed the Anti- Federalists' standing army and power over the militia concerns.

We have found no historical evidence that the Second Amendment was intended to convey militia power to the states, limit the federal government's power to maintain a standing army, or applies only to members of a select militia while on active duty. All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.

We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.

. . .

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 agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia. However, for the reasons stated, we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant's Second Amendment rights. Accordingly, we reverse the district court's dismissal of the indictment on Second Amendment grounds.

1. <http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm>

About a week ago, I had the opportunity to watch a sporting event from Europe that really surprised me. The behavior of everyone involved was very different than what we are used to seeing here.

As often happens, the national anthems were sung. Now, I still remember some sloppy pig of an entertainer coming down on the field in old street clothes at one of our events to sing our national anthem. She screeched out something somewhat resembling the Star Spangled Banner while scratching her crotch and then spit on the ground. That person obviously had no self respect and no pride or respect for her country.

Over in Copenhagen, Denmark, on the other hand, a delightful young woman in a very conservative gown did a beautiful rendition of our national anthem and then joined an equally good looking young man wearing a tux to sing Denmark's national anthem. I couldn't understand the words sung by the duet, but I am willing to bet five bucks that the rendition was perfectly correct and sung with great respect.

The crowd stood and was respectful for both anthems. Then came the referee, a well experienced American chap I have seen around before named Steve Smoger. This event was a heavyweight boxing match so one expects the referee to be just a little crusty and show a take a no-nonsense attitude. But, that was not the case at all. The referee was actually smiling and friendly.

The referee then brought the big professional fighters to the center of the ring that first time for instructions. He was very polite and kind. And, he was also surprising. Because, before sending everyone back to their respective corners to await the opening bell, this referee's last words to the fighters and their seconds was "God Bless." In fact, three times that evening, sports fans could clearly hear the referee say "God Bless" in reference to the fighters.

This wasn't just an "ordinary" heavyweight boxing match, either. The local favorite was Brian Nielsen, who has quite an impressive record in Europe. Alas, he entered the ring with America's perennial bad boy of boxing, Mike Tyson.

Funny thing about that, though, even Mike Tyson was on his best behavior. Oh, sure, Tyson was all business just like always. But, there was no biting, intentional head butts or punching on the break. In fact, there was only one low blow in the fight and that was quickly ruled accidental by the referee.

Unfortunately, Brian Nielsen sustained a nasty eye wound and, half way through the fight, his corner said he had lost vision in that eye. So, there was a great flurry of debate on whether Nielsen should continue or not. In the United States, a ring physician would normally make the determination and/or advise the referee. However, Denmark has somewhat different rules so the fighter's corner decided to act.

And there again we saw a fine display of polite sportsmanship. Mike Tyson was ready to go at the bell. Steve Smoger, the referee, called time out and went to talk with Nielsen.

"Are you sure you want to do this," Smoger asked Nielsen. "You know your rules and that I will have to award the win to Mike Tyson."

Nielsen and his handlers agreed. Steve Smoger said "God Bless" again and then turned to announce to Mike Tyson that he was the winner.

Now, of course we do not want to start writing sports columns. That's not the point.

The point is, if we must have our National Anthem played at sports events, why can't we have singers sing it with honor and respect? If they can get Mike Tyson to act like a gentleman and demonstrate good sportsmanship in Denmark, why not here, too? In fact, why can't all sports players demonstrate good sportsmanship?

News stories abound with accounts of children demonstrating and showing disrespect for our country by not standing for our National Anthem or reciting the Pledge of Allegiance. Perhaps at least part of that attitude comes from the children watching their so called "heroes" disrespectful behavior on television.

That can be changed. Now is the time to start getting it changed. And, we can start making that change by demanding that these entertainers hired to sing our National Anthem show the respect due the song and our nation.

Over the past month I have introduced several bills designed to address terrorism and make Americans feel more secure. While many counter-terrorism proposals were considered in Congress last week, my belief is that the most effective steps we can take do not infringe upon the civil liberties of American citizens. In fact, I believe only a free society can ever be truly secure. The goal should be to make terrorists feel threatened, not the American people.

Here are some concrete steps Congress can take immediately to make our borders, our cities, and our skies more secure:

Arm Pilots: It is unthinkable to leave pilots defenseless in the cockpit after the events of September 11th. We trust pilots to operate multimillion dollar machines filled with human cargo, yet incredibly we do not trust them with firearms. While airport security certainly can be strengthened, pilots must have the choice to carry weapons as a last line of defense against future hijacking attempts.

Immigration Restrictions: Common sense tells us that we should not currently be admitting aliens from nations that sponsor or harbor terrorists. Remember, only U.S. citizens have constitutional rights; non-citizens are in the country at the discretion of the State department. While we should generally welcome people from around the world whenever possible, we cannot allow potential enemies or terrorists to enter the country now under any circumstances. My legislation would restrict immigration, including the granting of student visas, by individuals from nations listed as terrorist threats by the State department.

Better intelligence gathering: Burdensome regulations and bureaucratic turf wars hamper the ability of federal law enforcement personnel to share information about terrorists. My proposal would slash regulations and make sure the CIA, FBI, State department, Justice department, and military work together to coordinate anti-terrorism efforts.

Harsher criminal penalties for terrorists: The federal statute of limitations for terrorist offenses should be eliminated, so that suspects can never breathe easy even 10 or 20 years from now. Jail sentences and penalties should be increased, and the death penalty should be possible for many offenses. Terrorist attempts and conspiracies should be treated as harshly as completed acts.

Letters of marque and reprisal: This constitutional tool can be used to give President Bush another weapon in the war on terrorism. Congress can issue letters of marque against terrorists and their property that authorize the President to name private sources who can capture or kill our enemies. This method works in conjunction with our military efforts, creating an incentive for people on the ground close to Bin Laden to kill or capture him and his associates. Letters of marque are especially suited to the current war on terrorism, which will be fought against individuals who can melt into the civilian population or hide in remote areas. The goal is to avail ourselves of the intelligence of private parties, who may stand a better chance of finding Bin Laden than we do through a conventional military invasion. Letters of marque also may help us avoid a wider war with Afghanistan or other Middle Eastern nations.

End legal preferences for terrorist suspects: Congress should clarify all federal criminal statutes to insure that so-called "extralegal" preferences for criminal terrorist suspects are eliminated. In some past terrorist investigations, federal rules have been interpreted to require law enforcement to show something more than standard probable cause to obtain warrants. Law enforcement officials should never have to demonstrate anything more than standard probable cause when seeking a warrant in the war on terrorism.

1. <http://www.house.gov/paul/tst/tst2001/tst101501.htm>

Also, be sure to listen to Rep. Ron Paul's weekly recorded message at: 1-888-322-1414

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