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Emerson Ruling Both Good and Bad for Gun Rights By: Tanya Metaksa
FrontPageMagazine.com | Friday, October 26, 2001


TUESDAY, OCTOBER 16, was a good news/bad news day for supporters of the Second Amendment.  On that day, the Fifth Circuit Court of Appeals issued two decisions on U.S. v. Emerson, a case that I covered in my FrontPageMagazine.com column, "Lawyers, Guns and Money."

The bad news was that the Court overturned Federal District Court Judge Sam Cummings’ 1999 dismissal of Dr. Timothy Emerson’s prosecution for possessing a firearm while under a restraining order.  That federal law was the 1994 Lautenberg Amendment to the Gun Control Act, which made it a federal felony for anyone under a restraining order to own a firearm.  Judge Cummings had ruled the Lautenberg Amendment unconstitutional and in violation of the Second Amendment to the Constitution.

Interestingly enough, the federal government only discovered that Dr. Emerson had a firearm after he was arrested and prosecuted under Texas law for threatening his wife when she trespassed into his office.  Although Judge Cummings dismissed the federal charges, Texas still prosecuted Emerson on state charges.  On October 19, 2000, a Texas jury acquitted Emerson of threatening his wife with a pistol.

The U.S. Treasury Department under the leadership of then Attorney General Janet Reno appealed Judge Cummings’ ruling that the 1968 Gun Control Act and all its amendments, were unconstitutional.  The Fifth Circuit Court ruled that Emerson’s Second Amendment rights may be "subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country."  Thus Dr. Emerson is now forced to appeal that decision or go through a retrial to avoid a felony conviction, which would make him ineligible to keep his firearms.

Notwithstanding Emerson’s continuing legal problems, American gun owners and supporters got their biggest court victory of the twenty-first century when, in an 87-page opinion, the Fifth Circuit by a 2-1 margin concurred with Judge Cummings’ interpretation of the Second Amendment.  Chief Judge William Garwood and Judge Harold DeMoss ruled that the Second Amendment protects the individual right to keep and bear arms.

In writing its opinion, the Court takes the time to analyze and dissect the Clinton-Reno-Handgun Control theory of the Second Amendment, which it calls the "collective right theory" and show how that view is inconsistent with every interpretation of the Constitution, the Bill of Rights, and even United States v. Miller, the only case where "the Supreme Court rendered any holding respecting the Second Amendment as applied to the federal government."

We conclude that Miller does not support the government's collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter it cuts against the government's position. Nor does the government cite any other authority binding on this panel which mandates acceptance of its position in this respect.(21)

The Court also defined what the term "people" means in the U. S. Constitution.

There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words "the people" have a different connotation within the Second Amendment than when employed elsewhere in the Constitution. In fact, the text of the Constitution, as a whole, strongly suggests that the words "the people" have precisely the same meaning within the Second Amendment as without. And, as used throughout the Constitution, "the people" have "rights" and "powers," but federal and state governments only have "powers" or "authority," never "rights."

Finally they debunked the idea that bearing arms referred only to military personnel:

The appearance of "bear Arms" in the Second Amendment accords fully with the plain meaning of the subject of the substantive guarantee, "the people," and offers no support for the proposition that the Second Amendment applies only during periods of actual military service or only to those who are members of a select militia. Finally, our view of "bear arms" as used in the Second Amendment appears to be the same as that expressed in the dissenting opinion of Justice Ginsburg (joined by the Chief Justice and Justices Scalia and Souter) in Muscarello v. United States, 118 S.Ct. 1911, 1921 (1998); viz:"Surely a most familiar meaning [of carrying a firearm] is, as the Constitution's Second Amendment ("keep and bear Arms") (emphasis added) and Black's Law Dictionary, at 214, indicate: "wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person."


Tanya K. Metaksa is the former executive director of the National Rifle Association's Institute for Legislative Action. She is the author of Safe, Not Sorry a self-protection manual, published in 1997. She has appeared on numerous talk and interview shows such as "Crossfire," the "Today" show, "Nightline," "This Week with David Brinkley" and the "McNeil-Lehrer Hour," among others.


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