July 3, 2000, 8:01PM
Court ponders landmark gun control case
Outcome may redefine right to bear arms
By DEBORAH TEDFORD Copyright 2000 Houston Chronicle
"A well regulated militia, being necessary to the security of a free
state, the right of the people to keep and bear arms shall not be
infringed." -- Second Amendment, U.S. Constitution.
The national gun control debate could take on an added dimension as
three federal judges in one of the most conservative circuits in the
country ponder a case that could redefine who has the right to bear
arms.
A panel of the 5th U.S. Circuit Court of Appeals in New Orleans is on
the verge of answering a landmark constitutional question: Does the
Second Amendment privilege extend only to service organizations, or to
individuals as well?
And it all stems from an acrimonious 1998 divorce case involving a San
Angelo physician and whether the Violence Against Women Act is
unconstitutional because of its conflict with the Second Amendment.
Although many people believe individuals have a right "to keep and bear
arms," the federal judiciary has consistently held the constitutional
amendment bestows a collective right that is meant to ensure the states
can maintain a militia, such as the Texas National Guard.
But a federal judge in Lubbock cast aside that interpretation last year,
setting the stage for what could be a landmark decision.
"It will be a seismic ruling if the Second Amendment issues are
addressed," said Washington, D.C., attorney Chuck Cooper.
"Upholding the Second Amendment claim would affect gun control measures
that affect law-abiding people. It would restrict the ability of
legislatures to prohibit gun ownership and gun possession."
The divorce proceeding involves San Angelo physician Timothy Joe Emerson
and his wife, Sasha Emerson. While they hammered out temporary child
support and other preliminary issues, the family court judge issued
standard orders in the case, including a temporary restraining order
against Emerson. The order contained wording typical of those issued in
contested divorces, including an instruction not to possess a firearm
while the order was in force, said Emerson's attorney.
The pending divorce was uneventful until September 1998, when Sasha
Emerson dropped by her estranged husband's medical office. There
Emerson allegedly threatened her and brandished a gun at her and the
couple's 6-year-old daughter.
Emerson, 43, denied the charges. Although he did not have a history of
violence, he was ultimately indicted under the Violence Against Women
Act of 1994 on five counts of illegal firearms possession. Four of the
charges were later dismissed.
Assistant U.S. Attorney Bill Mateja of Lubbock said his office filed
charges because it involved violence against women, an area that is
getting more attention from law-enforcement nationwide. "We never saw it
as a constitutional case," he said.
But David Guinn, the public defender who represented Emerson at trial,
saw things differently.
Guinn asked U.S. District Judge Sam R. Cummings to dismiss the final
charge. He argued that two of Emerson's constitutional rights were
violated: his right to keep a weapon and his right to due process.
Additionally, Guinn argued that Congress intended the Violence Against
Women Act to mean that an express finding of dangerousness should be
made before one's right to keep a weapon is infringed upon.
But it was the Second Amendment issue that Cummings seized upon,
declaring the Violence Against Women Act unconstitutional. In a ruling
issued April 7, 1999, he departed from the accepted interpretation of
the Second Amendment and declared that it supports an individual's right
to bear arms.
"It is absurd that a boilerplate state court divorce order can
collaterally and automatically extinguish a law-abiding citizen's Second
Amendment rights, particularly when neither the judge issuing the order
nor the parties nor their attorneys are aware of the federal criminal
penalties arising from firearm possession after entry of a restraining
order," Cummings wrote.
The appellate judges considering the case have a multitude of choices,
but only two big ones:
� They can uphold or reject Cummings' interpretation that the Second
Amendment bestows an individual right to bear arms.
� They can ignore the constitutional issue and rule solely on the issues
involving the Violence Against Women Act.
"There was no evidence Dr. Emerson had ever threatened his wife or
child," said Timothy Crooks, chief of the appellate section of the
Federal Public Defender's office in Fort Worth. "The 1994 act makes it
a crime to possess a weapon under the restraining order, whether you
intend violence or not."
Crooks, who argued the case before the 5th Circuit, said that is a clear
violation of Emerson's rights under the Second Amendment. He contended
the amendment does provide an individual right, but acknowledged those
rights are subject to reasonable limitations by government.
The reasonable limitations include an express finding of dangerousness
before a violation of the Violence Against Women Act should be
considered, he said.
Mateja argued to Cummings and the 5th Circuit panel that the Second
Amendment applies to the collective right of members of a militia.
Because the concept seems odd in present day, many people refuse to
accept the "collective right" definition that was last laid out by the
U.S. Supreme Court in 1939, and has been consistently supported by the
circuit courts.
"Everyone wants to believe that constitutional amendments are going to
live forever, but not too long ago they had an amendment that prohibited
the sale of alcohol," said Mateja. "The Third Amendment -- the state
can't quarter soldiers in private homes -- is an amendment that has
become anachronistic."
He said the law is rooted in history as a response to the
nti-federalists who were concerned about Article I of the Constitution,
which says Congress has the right to raise and support armies. In the
late 1700s there was a mistrust of standing armies, and the Second
Amendment served to ensure states had the right to arm their militias.
"That right has become diluted because militias don't have the same role
they did," said Mateja. "But history defined the amendment and every
court of appeals has found there is a collective right, and we
maintained to the panel that they have to follow precedent."
Both sides hope the judges tailor their decision to address only the
statutory concerns raised about the Violence Against Women Act -- that
is, whether there must be a finding of dangerousness in order to
restrict an individual's right to keep a weapon.
Although Cooper -- one of dozens of parties to jump into the fray --
views the Second Amendment as bestowing an individual right, he said
many states have gun restrictions in place that would be jeopardized by
a ruling on the Second Amendment issue.
Joshua Hurwitz, executive director of the Educational Fund to End
Handgun Violence, believes the Second Amendment is a collective right.
But he, too, hopes the appellate judges bypass that issue altogether.
"A lot of gun control that's been passed in the last 20 years could be
in jeopardy," said Hurwitz. "Could you say someone who's an illegal
alien, a juvenile ... couldn't carry a weapon? There's a ban on making
machine guns, but could you make them?"
--
But the Supreme Court did not rule in 1939 that it was a collective
right - they ruled that sawn-off shotguns were not weapons in use
by the militia and therefore not constitutionally protected.
Steve.
Cybershooters website: http://www.cybershooters.org
List admin: [EMAIL PROTECTED]
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