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Court Ponders Landmark Gun Control Case 
Outcome may redefine right to keep and bear arms.

By DEBORAH TEDFORD - Copyright 2000 Houston Chronicle

4 July 2000

"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 anti-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?" 

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