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A Gutless Supreme Court Decision By: Tanya Metaksa
FrontPageMagazine.com | Tuesday, June 18, 2002

TODAY we are seeing a tiny respite in the unrelenting push for more and more gun control during the eight years of Bill Clinton and Janet Reno. The Bush Administration has signaled a change of philosophy that may stop more legislation, but it has not even remotely suggested that it will repeal any laws currently on the books. In fact, in signaling its change of philosophy, it asked the Supreme Court not to take up the case of the United States vs. Timothy Emerson. On June 10 the Supreme Court of the United States (SCOTUS) yielded to the Bush administration’s request.

Upon the announcement of the decision, the Violence Policy Center (VPC), a group that worked closely with the Clinton White House, sent out a press release hailing the decision and claiming it to be a victory for the VPC position that the Second Amendment is not an individual right.

"Today's Supreme Court action is a victory for public safety and security and a defeat for the National Rifle Association and gun criminals, who have been chomping at the bit for the Supreme Court to overrule its own precedent on the Second Amendment.

Although I disagree with their characterization, I believe that the SCOTUS decision to deny certiorari to Emerson made it plain that they were not ready or willing to take up the matter of what has been called the Lautenberg Amendment. The VPC believes the decision is a positive development in their quest for the total abolition of private firearms ownership and unfortunately I have to agree. This ruling is a bad for those agree with the original decision by Judge Sam Cummings issued in 1999 and believe the Lautenberg amendment to be flawed and unconstitutional. Cummings wrote:

"It is absurd that a boilerplate state court divorce order can collaterally and automatically extinguish a law-abiding citizens 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 the restraining order. That such a routine civil order has such extensive consequences totally attenuated from divorce proceedings makes the statute unconstitutional. There must be a limit to government regulation on lawful firearm possession. This statute exceeds that limit, and therefore it is unconstitutional."

The Lautenberg amendment, passed in 1994, turned domestic misdemeanor offenses into the equivalent of a federal felony, thus denying anyone, who had pleaded guilty to a misdemeanor offense such as a threatening a spouse, of ever owning a firearm. It even made the offense retroactive. Anyone who had ever pleaded guilty to such a misdemeanor became unable to own or use a firearm in his/her occupation. Finally it made possession of a firearm while under a restraining order a federal felony offense.

This was a politically correct law ostensibly designed to cut down on domestic violence and spousal abuse. It accomplished two things: reducing the number of persons eligible to own firearms and making federal felons out of many police officers, military personnel, and law-abiding gun owners, like Dr. Emerson. In fact the cases that have come before the courts have expanded the Lautenberg amendment even further than envisioned by the Congress. Now the courts have ruled that any statutory definition of domestic violence can be used to enforce this law even if there is no actual violence that meets the actual Lautenberg definitions. Thus even an argument can be cause for losing one’s gun rights.

Additionally the courts have ignored the provision that requires defendants to be informed about the Lautenberg provisions before the defendant acquiesces to a domestic violence misdemeanor guilty plea.

SCOTUS by upholding the Fifth Circuit decision has sentenced Dr. Timothy Emerson to another trial. When the government appealed Judge Cummings decision, the Fifth Circuit court decided last year that Cummings’ opinion on the Second Amendment was correct but disagreed with his declaring the Lautenberg amendment unconstitutional. The judges stated the government could place limitations on that right, reinstated the federal indictment against Emerson, and remanded the case to the District Court for trial. Emerson appealed the reinstatement of the federal indictment to SCOTUS and lost.

William Meteja, the federal prosecutor who stated that the Second Amendment is only applicable to persons serving in the National Guard with weapons used in the Guard, has already told the defense attorney he will go to trial.

This will be Emerson’s second trial. He was acquitted of two felony charges in a court case brought by the state of Texas. Thus the Supremes have gotten out of a decision on the constitutionality of the Lautenberg amendment for quite a bit longer.

It was one of those gutless Court decisions. The issue is clear and Cummings stated it succinctly. Yet, gun control is a hot political topic and no one wants to get near it. The politicians are staying away across most of the country, while the courts are staying as far away as possible. While anti-gun prosecutors like William Meteja are taking advantage of the hiatus to garner more innocent scalps on their belts. It seems our courts are forgetting the presumption of innocence.

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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