I have been discussing this with some other defense attorneys out here in
West Texas, and we'd like to find a case to take up to try to harmonize
Judge Garwood's formulation of what weapons are protected from Emerson
("suitable for individual service in a militia") with Scalia's test from
Heller, starting with the proposition that we have three classes of militia
(the organized militia, defined as the National Guard, the unorganized
militia, as further defined in Title 10, and essentially a common law
militia, comprising all able-bodied adults (after factoring in equal
protection)), and that any weapon in common individual usage by one part of
the militia should be protected for use by any other part of the militia.
With regard to people's objections regarding destructive devices (artillery,
grenades, etc.), it should be pointed out that such items are not generally
prohibited to the civilian populace at present; the only NFA category which
has been foreclosed from civilian usage is fully-automatic weaponry, while
the remainder are still available with registration & the payment of an
arguably unconstitutional transfer tax.
Regards
Aaron Clements
Hurley & Guinn
Lubbock, Texas
(formerly attorneys for Dr. Emerson)
----- Original Message -----
From: "John Briggs" <[EMAIL PROTECTED]>
To: <[email protected]>
Sent: Sunday, June 29, 2008 10:03 AM
Subject: Re: Heller Questions
>
>>In "common use"? By whom? Civilians or the military? That line of
>>argument clearly points to military, and to some serious hardware. It
>>doesn't work to say by civilians after a long period in which some kinds
>>of weapons have been forbidden to civilians, but used by criminals.
>>Perhaps in common use by criminals?
>
> I would be happy to start at the position that civilian weapons are
> protected, as long as we all recognize the obvious fact that in this
> country and under our laws and traditions, government law enforcement
> agencies are civilian bodies. Any weapons deemed suitable for civilian
> governmental use against criminals are, by that fact, suitable for private
> civilian use in defense against those same criminals. Our police agencies
> are not equipped or expected to fight off invading armies blitzing across
> the Great Plains -- they are equipped and expected to go up against the
> very criminals who overwhelmingly prey not upon officers of the law but
> upon ordinary civilians. Just like ordinary civilians, police officers who
> commit crimes with their weapons are subject to civilian courts, not
> military tribunals.
>
> (I am not aware of any police agencies equipped with artillery,
> flamethrowers, jet fighters, or the like, so for now we avoid the stickier
> questions about what military weapons are suitable for possession by
> civilians who comprise the general militia. If there are such agencies
> then
> the state or local government that has so equipped its police are simply
> hoist on their own petard, so to speak.)
>
> --
>
> John E. Briggs
> [EMAIL PROTECTED] Phoenix, Arizona, USA
>
> We sleep safe in our beds because rough men stand ready in the night to
> visit violence on those who would do us harm.
>
>
>
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