Circuit Sights Gun Right

In the aftermath of the National Rifle Association’s raucous annual convention in Charlotte, N.C., and the “Million Mom March” on Washington, D.C., gun control in the post-Columbine era has replaced abortion as the most contentious issue of the 2000 campaign. But as Al Gore and George W. Bush jockey for position on issues like trigger locks and background checks, the real powerbrokers of Second Amendment law may be three as-yet-unknown New Orleans federal judges. On June 13, in a courtroom of that city’s John Minor Wisdom Courthouse, a panel of the 5th U.S. Circuit Court of Appeals will hear oral arguments in a case that may boil down to one simple question: Do individuals have the right to bear arms? Recent polls say that most believe the Second Amendment stands for precisely that. What many don’t know is that for nearly a century, federal courts have ruled with regularity that citizens have a right to firearms only as they reasonably relate to the maintenance of a “well regulated militia.” But on April 7, 1999, U.S. District Court Judge Sam R. Cummings, of the Northern District of Texas, threw a wrench into 20th-century gun rights jurisprudence with his ruling in U.S. v. Emerson. Cummings, a Reagan appointee, surprised both sides by declaring unequivocally that “a textual analysis of the Second Amendment supports an individual right to bear arms.” In the case, Timothy Joe Emerson, a 40-year-old San Angelo, Texas, physician, was charged with violating a federal law barring firearms possession by a person who is the subject of a state domestic restraining order. “It’s a sleeper case … which if sustained could radically change the manner in which guns are regulated,” warns Stuart J. Land, chief of the pro bono committee and former chairman of Washington, D.C.’s Arnold & Porter. He is the attorney for the Educational Fund to End Handgun Violence and the author of the group’s amicus brief attacking the ruling. “To have this issue coming up now, after Columbine and all the gun violence of the last year, much of it involving children — it’s very timely and also a little scary,” he says. The case has drawn 100 amici curiae, ranging from the National Rifle Association, on one side, to Land’s group and law enforcement, on the other. “The question of what the Second Amendment means is still open,” says George M. Strickler, a law professor at Tulane University who co-wrote a brief filed on behalf of Academics for the Second Amendment, a St. Paul, Minn.-based gun rights group. “Obviously, a ringing endorsement of the Second Amendment as a personal right would be greeted with a lot of happiness.” Some experts say that the three-judge appeals panel may not reach the Second Amendment issues. But they add that if the court does follow Judge Cummings’ lead, it could be setting up a gun rights showdown before the Supreme Court that could finally decide the meaning of the 208-year-old sentence: “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.” READ THE FINE PRINT On Dec. 8, 1998, a federal grand jury indicted Emerson on five counts of illegal firearm possession. A few months earlier, he was in divorce court, where his estranged wife alleged he had threatened a male friend. Emerson, without a lawyer, did not dispute his wife’s allegations and was made the subject of a restraining order barring him from threatening her or his daughter. A few months later, he was arrested for doing just that, allegedly brandishing a gun at them in his medical office. He was indicted in federal court under 18 U.S.C. 922(g)(8), a part of the Violence Against Women Act left intact by the U.S. Supreme Court’s May 15 ruling in U.S. v. Morrison, which struck down the act’s civil remedies. The valid code section makes it illegal for a person who is “subject to a court order that … restrains [the person] from harassing, stalking or threatening an intimate partner or child” from possessing or buying a firearm. When arrested, prosecutors say that Emerson had two 9 mm pistols, a military issue M-1 rifle, an SKS assault rifle with bayonet and an M-14 rifle. In charging Emerson, prosecutors say that he should have known it was illegal to possess a weapon because when he purchased a Beretta pistol from the Timely Finance Co. in San Angelo in 1997, he signed a “Firearms Transaction Record” which spelled out that being the subject of a restraining order means one cannot buy guns. Emerson’s first court-appointed lawyer, ex-federal public defender David M. Guinn, decided not only to challenge the federal law on due process grounds, but also came up with the novel idea of defending his client under a Second Amendment theory. GETTING AROUND ‘MILLER’ Cummings’ ruling in Emerson discounts modern case law in favor of a historical analysis that starts in the seventh century, when “Englishmen were required to possess arms and to serve in the military,” and runs to the present day, in which “there has been a long tradition of widespread lawful gun ownership by … individuals.” He distinguished the case from what the gun control lobby considers the controlling precedent in the area: the 61-year old, tommy-gun era U.S. v. Miller, in which the Supreme Court unanimously upheld a conviction for moving an unregistered sawed-off shotgun in interstate commerce, a violation of the National Firearms Act of 1934. The court held that the law did not violate the Second Amendment as there was no evidence that such a gun had any reasonable relationship to the preservation or efficiency of a well-regulated militia. Cummings countered that Miller addresses only the military usefulness of a sawed-off shotgun, not whether individuals have a right to possess guns. “One can read Miller as supporting … that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly used in modern warfare,” he wrote. This logical extension of the “states’ rights” position, pro-gun groups say, demolishes the “reasonable relationship” language of Miller. Because most of the federal cases dealing with gun rights cite Miller, gun rights supporters conclude, the government’s reliance on those cases in Emerson is flawed. Cummings continued, “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.” The judge declared the law at issue in Emerson unconstitutional, adding cryptically that “a colorable argument exists that the Federal Government’s regulatory scheme, at least as it pertains to purely intrastate sale or possession of firearms, runs afoul of the Amendment’s protections.” He wrote that the statute also violates Emerson’s Fifth Amendment rights, because it is an “obscure, highly technical statute” with no requirement of intent by the defendant, and because Dr. Emerson was prosecuted without “proof of knowledge that he was violating the statute.” REASONABLY RELATED Asst. U.S. Attorney Bill Mateja has been prosecuting gun cases in Lubbock, Texas, since 1991. The 38-year-old prosecutor says that the Justice Department’s stance is that “this case is really a no-brainer, and the 5th Circuit is bound to follow stare decisis.” Emerson’s present lawyer says he hopes the appeals panel rules simply that a state domestic restraining order must require a finding of dangerousness before the federal gun law can be activated. “I certainly don’t think it would be in Dr. Emerson’s interests to make him a poster boy for the Second Amendment,” says the lawyer, Timothy Crooks, 39, chief of appeals for the Federal Public Defender’s office in Fort Worth, Texas. But if the federal panel must reach the issue, then he believes it should uphold the lower court ruling since “no Supreme Court or 5th Circuit case has ever resolved whether the Second Amendment guarantees an individual right.” Although he acknowledges that many of his colleagues oppose the gun lobby, Crooks stoically declares that his first concern is his client’s defense. Asst. U.S. Attorney Mateja counters that neither statutory construction nor due process issues damage the 1994 federal law because it punishes only “knowing” violations and that Dr. Emerson’s ignorance of the law “is no defense.” THE ACADEMICS SQUARE OFF Tulane’s Strickler, of Academics for the Second Amendment, argues that “in the last 10 or 15 years there has been a burgeoning of research in the area of the Second Amendment” supporting the right to bear arms. Gun control advocates argue that this scholarly work has been funded by the gun lobby in an effort to smooth the way for pro-gun rulings. Ironically, both Strickler’s group and the NRA shy away from calling for an absolutist ruling in Emerson. They concede there is some valid federal power to regulate guns, in the words of the Academics for the Second Amendment amicus brief, to prevent “felons, drug addicts, [and] the deranged” from owning them. “We don’t want to lose,” Strickler says. “An opinion from the court that basically says [we're] wrong is something we don’t want.” Opposite Strickler is Brooklyn Law School Professor David Yassky, who with 51 other academics, is seeking to debunk Cummings’ historical analysis in his brief. “The guys who wrote the amendment were afraid New York was going to invade Virginia. But that’s not what the world is like anymore.” Eminent Second Amendment scholar Laurence Tribe, of Harvard Law School, whom both sides cite in their briefs, agrees with a compromise approach. “Even if one does believe that it does confer individual rights, there isn’t any way of treating it as conferring a right for people who threaten violence,” he says, adding, however, that he believes Emerson is unlikely to be a landmark case. “People are looking … for a judicial pronouncement on whether the right to bear arms has an individual-rights component. Unless the 5th Circuit falls into [a] trap, this isn’t likely to be a case where the court reaches the question.”