ARMED-M

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The Armed M is a publication of the 2nd Amendment SIG, a special interest group of American Mensa Ltd. Opinions expressed herein are the opinions of the writers, and not of American Mensa, Ltd., which has no opinions. This newsletter is linked to the Mensa web page WWW.Mensa.org as WWW.webcatt.com/2ndAmend_SIG

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Jan. 2003 I have moved and am now in Wilmington North Carolina. My E-Mail address is Smith705@Juno.com. I can always use contributions to the newsletter. If you write something or find something e-mail it to me I'll put it in the newsletter as space and theme allows. Bob Smith -----

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Ballistic signatures

  1. Unlike human fingerprints or DNA, ballistic signatures DO change.  Wear through shooting the firearm, or intentional changing or alteration of the barrel and certain parts (bolt/slide face, firing pin, extractor, ejector) will change the ballistic signature.

  2. In the case of new guns coming off the production line, ballistic signatures are NOT unique.  These signatures are the result of tool marks left by the rifling cutter and parts such as the bolt face, extractor and ejector.  Newly produced firearms are generally uniform in these features, especially in barrels coming off the production line sequentially.

  3. There are currently more than 200 million firearms in circulation in the U.S. No discussion has been made of an attempt to take ballistic signatures of these guns.  This would be an extremely costly and time-consuming measure, and one that would have little or no impact on solving crimes. Most guns used in crimes are stolen.

  4. Ballistic signatures are most useful as a tool to tie a recovered firearm (from a crime scene or suspect) with ballistic evidence (bullets, cartridge cases) left at the crime scene.  The greater the time separating the gun from the crime, the less likely ballistic signatures will prove effective. Ballistic characteristics have been available as a crime lab tool for decades and have been instrumental tying recovered guns to crime scenes. It fails the cost-benefit test when applied to any general collection of sample cartridges cases and bullets.

  Note: we intentionally do not use the term "ballistic fingerprint" because we believe it to be misleading. Ballistic signature or ballistic characteristics is a more accurate description of the marks left on the bullet and cartridge case by a firearm.

Update: As expected, Ohio's concealed carry ban scheme was again declared unconstitutional by a Unanimous Appeals Court in a very strongly worded opinion!

  WARNING: The Ohio Supreme Court has issued a stay and has announced it will hear the appeal! For the time being, it is a FELONY to carry a concealed weapon in all of Ohio, including Hamilton County! Possible reasons for the stay include lack of Senate Action, repeated calls to Supreme Court staff asking about the case status, and anti-reform diatribes against concealed carry in various newspapers. The good news is that we got another two weeks to prove that concealed carry doesn't increase crime! Click here for trial updates by Chuck Klein.

  The Senate will begin testimony on HB 274 to reform Ohio's concealed carry ban schemes on Wednesday, April 24th. This date is appropriate as it marks the two-week anniversary for unlicensed concealed carry in Hamilton County, Ohio.” We are pleased that the Senate is addressing this issue in a timely manner," stated Dave LaCourse, SAF Public Affairs Director. "Not since 1995 has carry reform been this close, and now is a good time to act before more counties overturn Ohio's unconstitutional statutes."

  The Ohio Supreme Court has refused to issue an emergency stay in the Hamilton County case, so it has been legal to carry a variety of concealed weapons, including firearms, without any license or training in that County. Many now doubt that any stay will be granted since the last two weeks have been uneventful, thus refuting many of the Governments' appeal claims. The lack of a stay also puts more pressure on the Governor and the Legislature to fix this constitutional crisis.

On April 10th, a unanimous court of appeals resoundingly rejected the governments' arguments, and ruled that several Ohio statutes banning the concealed carry of firearms were unconstitutional.” This was a total vindication of the trial court's decision and another great victory for the Second Amendment Foundation and the citizens of Ohio," stated SAF Founder Alan Gottlieb. "All three judges were of the same opinion, these carry ban laws are offensive to common sense and need to be stricken from the books, and I couldn't agree more."

SAF's lawsuit exposed the current scheme as a violation of the Ohio Constitution (Article 1, Section 1 [inalienable right to defend life, liberty and property], Article 1, Section 4 [bear arms for defense and security], Article 1, Section 2 [equal protection] and Article 1, Section 16 [due process]). In addition, as all four judges found, the current law treats people as if guilty until proven innocent!

SAF's lawsuit exposed the current scheme as a violation of the Ohio

  The Ohio laws in question, R.C. 2923.12, bans all concealed carry of firearms with felony penalties for any violations while R.C. 2923.16 bans loaded guns in a motor vehicle. Only after a person is caught violating either of these provisions, and the person incurs the costs and stresses of a criminal trial, does the current law allow the possibility of an "affirmative defense" to be made. It was for this reason, and others, that the laws were struck down."Laws that are incomprehensible to the average citizen must be struck down as unconstitutionally vague," reminded LaCourse. "The carry ban laws entrapped innocent people into thinking that they could exercise their rights when they couldn't, and that is wrong, and I am pleased the courts saw this."

  Plaintiffs include Pat Feely, who was previously arrested and tried under the gun carry ban scheme. Both the prosecutor and the judge in that case stated that the law should be changed or repealed. While Feely was acquitted at trial, he risked the same charges again if found carrying a concealed firearm in the future. The threat and costs of repeated prosecutions was only one of many reasons the current law was declared unconstitutional.

  Mr. Feely carries large sums of cash as part of his employment. Mr. Feely and others sought to have their right of self-defense restored with several pro-gun rights groups like Ohioans for Concealed Carry, Peoples Rights Organization and the Second Amendment Foundation.

  This decision does NOT mean that criminals, juveniles and other prohibited persons can carry firearms since many other gun laws remain enforceable. If there are any questions about this fact, please call the numbers above or visit our website at http://www.saf.org/Ohio.htm

  "This lawsuit has always been about restoring the right to bear arms to law-abiding adults under the Ohio Constitution, and does not benefit criminals in any way, shape or form," said Gottlieb. "The hysterical gloom-and-doom rhetoric from the other side highlights that they have not studied the successes in the vast majority of states that now allow concealed carry.” Nationally, 42 states specifically allow the carrying of concealed weapons or firearms with a license or permit. Vermont makes 43 states by allowing the carrying of concealed firearms without any license/permit because of a court decision, State v. Rosenthal (1903). Of the remaining 7 states, Ohio is unique with its incomprehensible affirmative defense and on whom the burden of proof is placed.

  The Second Amendment Foundation is the nation's oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. SAF has previously funded successful firearms-related suits against the cities of Los Angeles; New Haven, CT; and San Francisco on behalf of American gun owners. Current projects include several concealed carry lawsuits, a lawsuit against the cities suing gun makers, and an amicus brief and fund for the Emerson case holding the Second Amendment as an individual right. For more information, visit  http://www.saf.org/Ohio.htm

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    Most of you are familiar with the persecution of Dr. Tim Emerson by his adulterous wife who manipulated the courts and legal system under the guise of domestic violence laws to gain custody of their child after she began having an affair with her hairdresser. Note: ~40% of the hundreds of married men who have contacted the Equal Justice Foundation for help report they were falsely charged with DV after they discovered their wives were having an affair.

    Because Dr. Emerson was a gun collector, his case has turned into the most significant Second Amendment trial in more than 60 years. And for the first time ever, a Federal district court judge has ruled that the Second Amendment is an individual right rather than a collective right. Judge Sam Cummings then dismissed the original case against Dr. Emerson but the government, under Clinton, appealed. The individual right finding has been upheld by the US Fifth Circuit Court of Appeals but, as Dr. Emerson had never stood trial, they remanded his case back to the district court.

     Emerson then appealed to the US Supreme Court but Attorney General Ashcroft, in a motion in opposition to Dr. Emerson's appeal, stipulated that the government recognized the Second Amendment is an individual right. With no constitutional issue to decide, the US Supreme Court let the appeals court decision stand.     Dr. Emerson then stood trial in federal district court on October 7, 2002, and was convicted under 18 USC §922(g)(8) of being in possession of a weapon while under a restraining order. A motion for acquittal based on new evidence filed after his conviction has been denied, and he received his presentence review last week.

     While the Fifth Circuit Court of Appeals in New Orleans held that the Second Amendment is an individual right, in December 2002, the Ninth Circuit Court of Appeals in San Francisco held that the Second Amendment is a collective right. Thus, unless the Fifth Circuit overturns Dr. Emerson's conviction, it is virtually certain the US Supreme Court will hear the Emerson case on appeal (providing support can be found for his appeal).

     After four years of frustration and the devastation of his medical career, Dr. Emerson has asked the Equal Justice Foundation to publish the following details of his ordeal. Tim also faces jail in January, 2002, in a State of Texas prison for contempt of court due to his inability to pay child support. Forget the fact that they have taken his driver's and medical licenses away from him so he can't work and that his ex-wife was given custody originally because of her false allegations.

      None of the above will appear as any surprise to most on this mailing list, or any different than the way many of you have been treated. But in Dr. Emerson's case we have one of our best chances of overturning these draconian laws and ending these nightmarish practices. So your help in this Christmas season is desperately needed.

To: David Guinn, Esq. and Aaron Clements, Esq. From: Timothy Joe Emerson, M.D.

Subject: My conviction and sentencing under Title 18 United States Code Section 922(g)(8)

Okay, I'm mad! I am looking at 41 to 51 months in Federal prison simply because I married Sacha McSpadden, we had a baby together, and she had an affair with her hairdresser.

It was proven in the case of aggravated assault and endangerment of a child brought against me by the State of Texas, wherein I was acquitted of both charges, that Sacha and her adulterous boyfriend, Tim Nobles, conspired against me to destroy my reputation and career, and to gain custody of my daughter by manipulating the criminal justice system through a staged incident on November 16, 1998. Yet U.S. Bureau of Alcohol, Tobacco, and Firearms (BATF) agent Felix Garcia fabricated a story based on very few facts and using convenient hearsay about how an incident on November 16, 1998 occurred that was far from accurate. Agent Garcia did this to manipulate the Grand Juries into the false belief that I lured my estranged and adulterous wife, Sacha, into my office in order to threaten her, on the pretext of providing her with an insurance payment.

The subsequent case brought by the State of Texas proved that no domestic violence occurred in the November 16, 1998 incident. On the contrary, it was shown that I was defending my business property and patient medical records, after Sacha failed to leave my medical office despite continued demands and that she was, at that time, guilty of criminal trespass.

It was proven in the state case against me that my ex-wife committed adultery and lied. She admitted on several occasions under oath and on the record, that she never felt in any danger from me prior to the staged incident on November 16, 1998.

Does that not invalidate the basis for the "temporary restraining order" on which my conviction on federal charges rests?

After all, according to the U.S. 5th Circuit Court of Appeals, Texas courts do have to provide sufficient due process and make required findings of fact in order to issue domestic-violence restraining orders. Texas case law mandates that temporary restraining orders (like other preliminary injunctions) must only issue when "the applicant is threatened with an actual, irreparable injury." The Texas Supreme Court insists, "An injunction will not issue unless it is shown that the respondent will engage in the activity enjoined." If there were no fear of any danger, then why would a restraining order be required or justified in the divorce action?

In the transcript of the Temporary Orders Hearing in the divorce proceedings, no Temporary "Restraining" Order was issued by Texas District Judge John Sutton. According to the hearing transcript, Temporary Orders in the divorce were issued concerning financial arrangements, temporary custody of my daughter, and visitation arrangements. There is no mention of domestic violence or any enjoinder against threats or harm in the Temporary Orders. In fact, no mention was made regarding contact with each other, or prohibiting us from continuing to communicate as and when we chose. Judge Sutton, now retired and in private legal practice, communicated to his clerk in my presence that he purposely DID NOT routinely issue orders restraining one from harming or threatening an intimate partner...since they brought with them Federal liabilities. That raises the question of whether Sacha's San Angelo divorce attorney, Teri Motl issued an unauthorized order by including non-discussed orders in the "Temporary Orders" which she prepared for the Judge to sign. That issue has also been raised on several occasions and it has never been addressed, or investigated.

With regard to the weapons I had collected prior to and during the marriage: My purchase of these weapons was made legally, prior to any laws restricting ownership or any other restrictions regarding these weapons. The appropriate section of the U.S. Code states that weapons possessed prior to the enactment date of that statute were exempt from the statute concerning such weapons.

Enhancing my Federal Sentencing baseline score for legally possessed weapons of any type is clearly an application of law retroactively, or ex post facto. Articles possessed prior to the enactment of a statute are exempt from any regulation by statute, except perhaps "carry" restrictions. I have made these objections on numerous occasions and have been effectively ignored in every instance.

I have broken no laws in this entire ordeal, yet I have been persecuted for four years by the Texas Family Courts, my ex-wife, and the federal system, and I am really fed up with the bovine scatology thrown at me. [Ed. Note: They have a lot of that "bovine scatology" behind the bulls in West Texas.] The entire nightmare has been a complete fiasco and travesty of justice, and has only resulted in the total destruction of a dedicated physician, my personal life, and the lives of those close to me, most importantly, that of my daughter, whom I have not seen in 49 months.  That is four years and one month!

That is almost half of her life, and all of this because her mother chose to have an adulterous affair, set me up, and use the legal system to destroy my reputation and essentially my life. In order to cope with the seemingly everlasting stress of this travesty I am taking a substantial dose of antidepressant medication and underwent open-heart surgery on October 29, 2002.

Do not all of the actions against me count as malicious prosecution or abuse of process? The basic question then is who is responsible? The whole judicial system? The Congress of the United States? The Texas legislature? Out-of-control law enforcement officers? Zealots who are using the issue of domestic violence to further their personal agenda to destroy marriages and families? Surely one vindictive woman could not wreak such havoc without willing accomplices?

I am now facing the permanent loss of my medical license and four years incarceration in Federal prison as a felon simply because I fell in love with, and had a child with one of the most vindictive individuals in existence, aided and abetted by the ineptness of a legal system staffed by individuals who were willing accomplices to her manipulation.

In 1998 my medical practice was new and my parents, who are both on fixed incomes far below the poverty level, were financing a great deal of the costs of setting up the business. No positive income had yet been realized from my practice. Since my arrest in December, 1998 by the BATF I have been evicted from my office, lost all of my medical equipment, computers, billing (about $50,000 in unpaid bills due me) and patient medical records as well as medical certificates and other irreplaceable documents, not to mention a great deal of personal property, much of which was sold at a garage sale or donated to a local charitable organization on the advice of the landlord.

Due to the loss of my office and equipment, and the ominous and foreboding nature of the allegations against me, I have been unable to obtain employment as a physician and in May, 1999, was unable to even pay my annual license fee in order to renew my medical license. As a result of my lack of income, and being wholly destitute, my driver's license and medical licenses have both been suspended by the Texas Attorney General for inability to pay child support. Child support is required because custody of our daughter was given to my ex-wife as a result of the charges against me that she fomented.

Impossibility of performance is an affirmative defense, or justification for non-payment of court-ordered support. Yet I have been jailed repeatedly and in January face jail in a State of Texas prison for an indefinite period again for non-payment of child support.

Due to my good fortune of having a supportive family, I have maintained a place to live and food to eat. However, instead of paying taxes as a prosperous and respected physician, I am now dependent on the local government for mental health services for my depression and post traumatic stress disorder, and medical services that provided for my required open-heart surgery in October, all at taxpayer expense.

I wish to extend my sincerest thanks to the Second Amendment Foundation for my defense, but justice is not being done despite their continued efforts. I am living proof that there is no greater shock than to find that even with both law and facts in your favor, your constitutional rights are worthless because you can't get the courts or government to enforce them. Throughout history such actions by a State have been the cause of violence, not the cure.

The actions against me represent a train wreck of life, liberty and the pursuit of happiness! Since this began in 1998 I have been railroaded, manipulated and, for all practical purposes, destroyed as a physician and citizen. Arizona attorney David T. Hardy, a leading Second Amendment and Constitutional scholar, reviewed my case after referral from gun-rights columnist Neal Knox. Mr. Hardy advised me that according to statute and current case law, I had committed no crime.

Yet crimes have been committed and there are guilty individuals. Perjury, aggravated perjury, malicious prosecution, entrapment and outrageous government conduct, entrapment by estoppel, wrongful imprisonment, organized crime, and conspiracy to do, I don't even know what to call it, are the crimes that come to mind. But none of these, or any other crimes were perpetrated by me. It is up to society and our supposed legal and judicial systems to determine, by due process, where and when crimes have been committed, and then to have just penalties imposed on those guilty of those crimes, not the innocent. Do what is right!

As a physician, it is my duty to do what is right for my patient or I am held accountable. That goes as well for any other individuals or institutions that are associated with that patient's treatment.

Why should other professions and institutions not be held to a similar standard?

Our system is supposed to be fair and just. Do we have rights, or don't we? I was under the impression that our unalienable rights were given by God and were not subject to being taken away, except by due process of law. If any of this has been due process, Lord helps us all.

There is many decent, understanding, and fair people in this country, and if this degree of injustice can be done to one citizen, or any of them, for no wrong doing on their part, then we need to reexamine our legal system, and perhaps our system as a whole.

The Government has become a personal tool for vengeance in the eyes of Sacha and Tim Nobles and their cronies and it is past time to set things right.

Too many cooks spoil the broth. In my case too many different branches of government have gotten involved in matters where they know only bits and pieces of the situation. Bureaucrats and clerks then fabricate details to fill in the blanks based on ideology rather than a search for the truth. The record is clear. There has been no crime committed by me in any of this mess. Set things right, or we are all in for a mighty wild ride of destruction!

Tim Emerson, M.D.

The government consists of a gang of men exactly like you and me. They have, taking one with another, no special talent for the business of government; they have only a talent for getting and holding office. Their principal device to that end is to search out groups who pant and pine for something they can't get and to promise to give it to them. Nine times out of ten that promise is worth nothing. The tenth time is made good by looting A to satisfy B. In other words, government is a broker in pillage, and every election is sort of an advance auction sale of stolen goods. — H. L. Mencken 

JUSTICE DEPT. REVERSAL ON SECOND AMENDMENT HAILED BY GUN RIGHTS FOUNDATION

BELLEVUE, WA - The Justice Department's enlightened interpretation of the Second Amendment as an individual right was hailed today by the firearms civil rights organization that has supported a key Texas case that led to a federal appeals court ruling upholding the individual rights concept.

"Solicitor General Ted Olson took the correct position by advising the Supreme Court that the Second Amendment protects the rights of individuals to possess their private firearms, regardless whether they are in a militia," said Dave LaCourse, public affairs director for the Second Amendment Foundation (SAF).

SAF has been the driving force in the case of U.S. v. Emerson, which challenges the constitutionality of a federal law that prohibits gun ownership by citizens under civil divorce court restraining orders, even if they have not been convicted of a crime. A Texas district court judge ruled the law violated the Second Amendment rights of Dr. Timothy Joe Emerson (who has since been acquitted of all charges in state court). The Clinton/Reno Justice Department appealed to the Fifth Circuit Court in New Orleans, which last year reversed and remanded Emerson's case back to the Texas court, while at the same time affirming District Judge Sam Cummings' ruling that the Second Amendment is an individual right.

Anti-gun groups have blasted the Emerson Decision, and the Justice Department's reversal of its long-standing position that the Second Amendment only protects a collective right of states to organize militias. They insist that several federal court decisions support their position.

"Federal courts, and even the Supreme Court, have been wrong on issues before," LaCourse noted. "If we were to blindly accept what anti-gunners argue, then we would still be bound by the Supreme Court's Dred Scott decision in the 1850s that held slavery was legal.

"Today's constitutional scholars, including Prof. Laurence Tribe, confirm that the Second Amendment is an individual right," LaCourse continued. "For years, our own Justice Department has been deaf and blind to such scholarship, and the Fifth Circuit ruling forced the government to face the facts. Solicitor General Olson and Attorney General John Ashcroft deserve credit for their courageous reversal of four decades of constitutional denial."

This if from the North Carolina Consitiution.  Having everyone in the Militia is not unique for states but North Carolina also had Historic Militias.  These are private armies.  They function as social groups and rein actors now a days but have the same status as national guard.  They are units founded usually before the civil war.

                         Article 1.

                   Classification of Militia.

§ 127A-1.  Composition of militia.

  The militia of the State shall consist of all able-bodied citizens of the State and of the United States and such other able-bodied persons who have or shall declare their intention to become citizens of the United States, subject to such qualifications as may be hereinafter prescribed, who shall be drafted into said militia or shall voluntarily accept commission, appointment, or assignment to duty therein. (1917,

§ 127A-2.  Classification of militia.

  The militia shall be divided into the organized and unorganized militia. The organized militia shall consist of four classes: the North Carolina National Guard, the naval militia, the State defense militia and historic military commands. (1975,