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In the most comprehensive ruling on the Second Amendment in modern history, the 5th U.S. Circuit Court of Appeals ruled last week that individuals have the right to own firearms, yet Congress may limit that right. The decision is the first in decades to hold clearly that the right to bear arms belongs to ordinary citizens — not just to the military or a “well regulated militia.” Groups on both sides of the gun control debate view the decision, U.S. v. Emerson, as groundbreaking. Several appellate lawyers believe the closely watched case eventually will go to the U.S. Supreme Court. The case involves Timothy Joe Emerson, a San Angelo, Texas, doctor who was prosecuted in federal court after authorities determined that his ownership of a pistol violated 1994′s Violence Against Women Act. The act prohibits people who are the subject of a protective order from owning guns. Federal prosecutors indicted Emerson in 1998 for violating the act while the subject of a protective order filed by his wife as part of a divorce proceeding. On March 30, 1999, U.S. District Judge Sam Cummings of Lubbock, Texas, decided that VAWA violated Emerson’s Second Amendment rights and dismissed the indictment. The government appealed. The Second 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.” Emerson and its Second Amendment issues are tailor-made for the gun control debate. The gun rights lobby believes the amendment means that people have an “individual” right to own firearms. Gun control advocates believe the amendment grants a “collective” right to gun ownership only to militia members. Senior Judge Will Garwood, who’s no stranger to gun control cases, wrote the opinion in Emerson. In 1993, Garwood penned U.S. v. Lopez, a decision that struck down Congress’ Gun-Free School Zone Act. The act made it a federal crime to possess a firearm within 1,000 feet of a school. The U.S. Supreme Court upheld Lopez in 1995 and some experts believe the same thing will happen in Emerson. In Emerson, Garwood traced the history of the Second Amendment to its origins in the 1787 Constitutional Convention, finding it applies not only to a well-armed militia, but also to individuals. Yet Garwood, joined by Judge Harold R. DeMoss Jr., found that an individual’s right to own a gun may be limited. The majority also held that VAWA infringed on Emerson’s Second Amendment rights. “The Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions … ,” Garwood wrote in remanding Emerson’s case to the trial court. “It is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms.” In a separate concurrence, Judge Robert M. Parker agreed with the outcome of the decision, yet he winced at the majority’s decision to put a stamp of approval on the individual right to bear arms. Parker believed that it was not necessary to answer the long-debated individual-collective right question to resolve key issues in Emerson. “No doubt the special interests and academics on both sides of this debate will take great interest in the fact that at long last some court has determined (albeit in dicta) that the Second Amendment bestows an individual right,” Parker wrote. “The real issue, however, is the fact that whatever the nature or parameters of the Second Amendment right, be it collective or individual, it is a right subject to reasonable regulation. “The debate, therefore, over the nature of the right is misplaced,” Parker added. “In the final analysis, whether the right to keep and bear arms is collective or individual is of no legal consequence.” FIGHT FOR THE RIGHT Oddly enough, leaders on both sides of the gun debate say Emerson is a victory for them. That conclusion is easy to reach because the opinion has something each side can grab onto: individual rights for the gun lobby and the ability to limit those rights for the gun control activists. “That’s the interesting thing and the brilliant thing about the way this opinion is written,” says David Schenck, a partner and appellate lawyer in Dallas’ Hughes & Luce. “They explain why the Second Amendment counts. But then they say, like the right to speech, that it’s not unlimited.” The opinion surely will figure into any challenges to gun control laws, says Schenck, who filed an amicus brief in Emerson on behalf of the Texas State Rifle Association, as did dozens of other groups involved in the gun control debate. Schenck believes the decision will make it harder to restrict the access to guns to anyone, as long as they aren’t a “criminal or a lunatic.” “There’s been an explosion in the last decade or so of federal legislation concerning firearms that infringes on the right to bear arms,” Schenck says. “I think [ Emerson] raises the question whether that stuff is constitutional. And I think the answer to that question is probably ‘no.’ “ But one academic is not as impressed with the majority opinion in Emerson. “Not only does the panel majority show a lack of judicial restraint,” says Neil McCabe, a criminal law professor at South Texas College of Law, “I think what they’ve done can better be characterized as unconstitutional since federal courts are not permitted to give advisory opinions and that’s what they’ve done on the issue of whether there is an individual right or a collective right in the Second Amendment.” Adds McCabe, “In doing so they have violated their oath of office in which they pledged to obey the Constitution.” Bob Dowlut, general counsel of the National Rifle Association, says there’s nothing radical or outlandish about the 5th Circuit’s decision, given the judicial history of the Second Amendment. Since the 1800s, courts have ruled that individuals have a right to bear arms. But that right was weakened in the 1930s as judges and lawmakers tried to crack down on gangsters by restricting access to weapons, he says. U.S. v. Miller, a somewhat murky 1939 gun control opinion by the Supreme Court — which the 5th Circuit cited heavily in Emerson — was part of that trend, Dowlut says. “But at least right now the average American citizen … they believe they have an individual right to keep and bear arms,” Dowlut says. “And what this court has said is ‘yes, we simply agree with the obvious. And we disagree with decisions after the nullifications of this right.’ “ Mathew Nosanchuk, litigation director of the Washington, D.C.-based Violence Policy Center, says the decision is also good news for those who advocate gun control. “To my mind, it’s a victory for federal gun control law, it’s a victory for advocates [against] family violence and it’s a loss for Dr. Emerson,” Nosanchuk says. “The court rejected Dr. Emerson’s claim that his Second Amendment right had been violated. It does not bode well for the NRA’s efforts to have gun laws struck down on Second Amendment causes.” Lawyers who represent Emerson say they will likely ask the 5th Circuit for en banc review of the case. They believe Emerson’s due process rights were given short shrift by the 5th Circuit because their client, a gun collector, was not notified that his hobby became a federal offense when he became the subject of a protective order. “We think that there is validity that due process is required when otherwise innocent conduct is transposed into felony conduct,” says Peter Fluery, a federal public defender in Fort Worth who represents Emerson on appeal. Bill Mateja, an Assistant U.S. Attorney in Lubbock who prosecuted Emerson, says the doctor had plenty of notice — Emerson filled out a federally mandated form before he bought a pistol advising him that he could not own a firearm if he was the subject of protective order. “We’re extremely pleased that we’re going to get a chance to continue our prosecution of Dr. Emerson,” Mateja says. David M. Guinn Jr., a former federal public defender who represented Emerson in the trial court, appreciates that the 5th Circuit held that the Second Amendment is an individual right. But he believes the court didn’t go far enough. “I think this should be an elevated right like political speech or freedom of religion — one that cannot be diminished,” Guinn says.

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