Gun-rights case could set precedent

Gun-rights case could set precedent
By KIM COBB
Copyright 1999 Houston Chronicle


 
Timothy Joe Emerson is an unlikely symbol for the right to bear arms -- a San Angelo physician whose nasty divorce hit bottom when he pulled a gun from a desk drawer during an argument with his estranged wife.
 
Because Emerson was under a divorce-related restraining order, mere possession of that weapon violated a federal gun-control law. But when a federal court judge threw out Emerson's subsequent indictment, saying the law violated his constitutional right to bear arms, it was the first time a federal court had struck down a gun-control law on Second Amendment grounds.
 
The local U.S. attorney appealed the case to the 5th U.S. Circuit Court of Appeals, charging the district judge had "completely glossed over the last 100 years of Second Amendment development." Legal experts say it has a good shot at review by a Supreme Court more sympathetic to gun rights than any in decades.
 
At stake is whether the Second Amendment to the Constitution guarantees an individual's right to own a gun or more narrowly preserves the right to bear arms for service in a state militia. The amendment reads: "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."
 
It's been 60 years since the high court took on the Second Amendment, ruling in United States vs. Miller that possession of a gun was constitutionally protected only in the context of preserving a "well regulated militia."  In the last century, Congress and state legislatures have passed a dizzying array of gun-control laws that likely would be open to challenge if the Supreme Court were to overturn Miller.
 
Emerson violated no law when he bought a 9 mm Beretta in October 1997, but his gun possession became illegal when his wife filed a temporary restraining order against him in connection with their divorce 11 months later.
 
The physician's attorney, federal public defender David Guinn, says similar restraining orders are filed almost by rote in many Texas divorce petitions, even where there have been no specific threats of violence. "It's sort of a cue for a judge to look at both parties, shake his finger, and say, `Y'all be civil to each other,' " Guinn said.
 
Two months after the order was issued, Emerson and his estranged wife argued in his office. He asked her to leave, and he took the gun out of his desk drawer. Accounts differ as to whether he actually pointed the gun at his wife, but Emerson was indicted by a federal grand jury in December 1998 for possessing the Beretta while under the confines of a domestic restraining order.
 
Guinn challenged the indictment on several levels, throwing in the Second Amendment argument almost as an afterthought. He said he was floored when U.S. District Court Judge Sam Cummings dismissed the indictment, in part because he found that the federal law had violated Emerson's Second Amendment rights.
 
"I knew if the judge ruled with us on the Second Amendment issue, it would explode after that," Guinn said. If the 5th Circuit upholds the district court decision, it would conflict with so many previous appellate court decisions that the Supreme Court would probably feel compelled to review it.
 
Predictably, activists on every side of the gun-control issue are posting amicus briefs to the 5th Circuit Court of Appeals. The National Rifle Association and, polls indicate, most Americans believe there is a constitutionally protected right to own guns, in spite of the previously unwavering interpretation by the courts.
 
The NRA has previously, however, avoided a direct Second Amendment challenge before unsympathetic courts in its anti-gun-control litigation, winning at least one major case on a states' rights argument.
 
"We look at this as an opportunity to reaffirm almost 60 years of established constitutional law regarding the Second Amendment," said Brian Morton of the Center to Prevent Handgun Violence. "I wouldn't be surprised if the gun lobby is throwing every resource in the kitchen at this."
 
"They've been looking for the perfect case for a long time, and I'm sure they hope this is the holy grail," Morton said.
 
The NRA and the National Association of Criminal Defense Lawyers both plan to file briefs supporting Emerson and his individual-rights argument.
 
The gun-rights lobby is encouraged by Supreme Court Justice Clarence Thomas' concurring opinion in a 1997 case ruling that Congress could not compel local law enforcement officers to conduct criminal background checks on prospective gun buyers. The court has not had a recent opportunity to look at the Second Amendment, Thomas wrote, but many federal gun-control laws may "run afoul" of the Second Amendment if it does protect a personal right to bear arms.
 
Thomas cited "a growing body of scholarly commentary (that) indicates that the right to keep and bear arms is, as the amendment's text suggests, a personal right."
 
"The concurrence is as open an invitation to run something up the appellate flagpole as I have ever seen," Guinn said.
 
"The text of the Emerson case is, in a sense, almost too good to be true in terms of facts and crispness," University of Texas law Professor Sanford Levinson said. "It's a live Second Amendment case of a kind that hasn't existed for years."
 
Levinson opened the floodgates on a lively debate among academicians a decade ago with an article he wrote concluding that the individual-rights argument was worth exploring.
 
"I would emphasize I don't think there are knockdown arguments for either side," Levinson said. But this liberal academician is clearly intrigued by the possibility of an individual-rights interpretation.
 
"I think there's also an issue that even if the Second Amendment only protects the states' right (to arm a militia), it might suggest that states would have the right to engage in the regulation of guns," Levinson said. "But it still wouldn't mean that the national government would."
 
Gun-rights opponent Morton charges that some of the academicians lining up on the side of the individual-rights arguments are shills for the gun lobby, unduly influenced by grants from NRA-backed foundations.
 
Levinson says he finds the allegations insulting, and says he's never received an NRA grant. And liberal Laurence Tribe, perhaps the most respected constitutional scholar in America, has come around to the individual-rights point of view as well.
 
Ray Diamond, a constitutional law professor at Tulane University, adds another unusual dimension to the individual-rights argument. He and co-author Robert J. Cottrol, a Second Amendment specialist at George Washington University, published a paper nine years ago focusing on the self-defense needs of American blacks, historically underprotected by and from the government, as a strong underpinning for the individual-rights argument.

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