August 2000

An Individual right?

One of the most important firearms-ownership court cases in 60 years is currently before a panel of the 5th U.S. Circuit Court of Appeals in New Orleans. The panel will decide whether to uphold a lower court ruling that said gun ownership is an individual, and not a collective, right under the Second Amendment. This may come as a surprise to Gun Tests readers who thought they were buying guns for their personal use all along, but many gun confiscators have advanced the argument that our ability to own guns is modified and controlled by this part of the Second Amendment: “A well regulated militia, being necessary to the security of a free state….”

This is a crucial distinction in terms of everyday regulation of firearms. If the latter half of the amendment’s wording holds sway, “the right of the people to keep and bear arms shall not be infringed,” and is held to be an individual right, and not one granted to members of state militias, then it’s entirely possible that many of the current restrictions on our ability to purchase guns would be overturned, and future regulations could be staved off. Here’s how the issue came to this point: The panel of judges is reviewing the outcome of a U.S. District Court action in which Timothy Joe Emerson, a San Angelo, Texas, doctor, ran afoul of the Violence Against Women Act (VAWA) of 1994. Mr. Emerson and his wife, Sasha, were engaged in a divorce proceeding beginning in 1998, and as part of those court actions, a family court judge issued a temporary restraining order against Mr. Emerson. Part of that order was an instruction not to possess a firearm.

Sasha Emerson claimed that during a visit to her estranged husband’s medical office, he brandished a weapon and threatened her and the couple’s 6-year-old daughter. That triggered an indictment under the VAWA for five counts of illegal firearms possession. Four of the charges were later dismissed.

At trial, Emerson’s lawyer, David Guinn, asked U.S. District Judge Sam R. Cummings to dismiss the final charge because Emerson’s individual right to own a firearm under the Second Amendment and his right to due process had been violated. He had been convicted of no crime and there was no evidence he had ever threatened his wife or child, but the 1994 act made it illegal to possess a weapon under the restraining order.

Judge Cummings agreed heartily with the firearms argument, writing in his decision, “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.”

Hopefully, the 5th Circuit panel will agree with Cummings’s thinking on the Second Amendment. If so, it will likely be a long trek up the appeals process before the matter is settled at the Supreme Court, but it would be a great first step.

-Todd Woodard