June 13, 2000, 9:04PM
Case questions meaning of Second Amendment
NEW ORLEANS (AP) -- A case argued Tuesday before a federal appeals court could determine whether the right to bear arms applies to individuals and not just the "well-regulated militia" referred to in the Second Amendment.
Last year, U.S. District Sam Cummings in Lubbock struck down a Texas gun ownership law that barred Timothy Joe Emerson from gun ownership because he was under a domestic violence restraining order in a divorce case.
The case was before a three-judge panel of the 5th U.S. Circuit Court of Appeals and is likely to wind up before the Supreme Court. It is being watched closely by the National Rifle Association, gun control and law enforcement groups.
Cummings ruled that the Second Amendment protects the right to bear arms for individuals and not only for organized militia groups.
On the side of the Texas law were attorneys for the state and for the U.S. Justice Department.
"Is it your position that someone who is not a member of the National Guard or state guard does not have a right to protection under the Second Amendment?" Judge Will Garwood asked U.S. Assistant Attorney William Mateja.
Mateja said that was the case.
Lawyers for Emerson said that federal and state law holds that anyone subject to military duty, essentially any able-bodied adult, is part of a nation's militia.
Therefore, Emerson had a right to possess a gun, said Timothy Crooks, a defense lawyer.
"So, you're saying that (Emerson) was a member of a militia, broadly defined," Judge Robert Parker said.
The judges took the arguments under consideration and did not say when they would rule.
Crooks said he hopes the 5th Circuit upholds Cummings and that the case ends with that, although he acknowledged that the Supreme Court may wind up with the issue.
"The Supreme Court has not really reviewed these issues," John DePue, a Justice Department lawyer, said.
In one Second Amendment ruling in 1939, the court ruled that sawed-off shotguns could be regulated, Mateja said.