Texas case could redefine gun-control laws

Like many spouses going through a messy divorce, Timothy Emerson was placed under a restraining order, forbidding him to have contact with his wife.

But when Dr. Emerson took a gun and used it to threaten his wife and daughter, the physician from Lubbock, Texas, didn't just violate that restraining order, prosecutors say. He also violated a federal law that prohibited someone under a restraining order from even possessing a gun.

Now, the case of US v. Emerson, under consideration by the US Fifth Circuit Court of Appeals in New Orleans, has sparked an unlikely court battle over whether the US Constitution guarantees the right to bear arms to individuals, or only to state militias. And legal experts say a decision here could help set the future course of US federal court decisions on the controversial issue of gun rights.

"This case could be a revolution in the court's view of the Second Amendment," says Richard Brudzynski, an attorney for the Potomac Institute in Bethesda, Md., referring to the constitutional amendment covering the "right to keep and bear arms." The group has filed a friend-of-the-court brief on behalf of the prosecution.

Defining the Second Amendment

For the past 60 years, most constitutional scholars thought there was little left to say about the Second Amendment.

In 1939, the US Supreme Court ruled that the federal government had the right to restrict the possession of certain weapons, and most lower courts basically followed that precedent. But in the past 10 years, as the number of federal and state gun-control laws has risen, debate has become increasingly heated about just what the Second Amendment really means.

Specifically, did the framers intend gun rights to be accorded to individuals, or merely to state militias?

The charge that brought Emerson into federal court in the first place was based on a 1994 federal law meant to protect women in divorce cases by keeping their spouses from possessing guns. But in April 1999, federal district Judge Sam Cummings of Lubbock overturned that law, saying it violated the spirit of the Second Amendment and "an individual's right to bear arms."

Even Emerson's supporters say he makes an unsympathetic test case for the Second Amendment. "Emerson is not the greatest teaching vehicle that we can have," says Brannon Denning, a law professor at Southern Illinois University, who filed a friend-of-the-court brief, arguing against the federal domestic-violence statute.

The reason, he says, is that Emerson's arguments will always be tainted by the circumstances of his case. "I have a right to keep and bear arms so I can shoot my wife in a divorce," he says mockingly.

Even so, Mr. Denning filed his friend-of-the-court brief because he "doesn't want to let another court of appeals case go by" that "glosses over" past decisions by the Supreme Court.

Ambiguous wording

At the crux of this debate is the somewhat ambiguous wording of the Second Amendment itself: "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."

Many gun-rights supporters, including Denning, argue that the key words are "the right of the people."

"It's intellectually dishonest and an invention of this century that 'the people' doesn't mean individuals," says Stephen Halbrook, an attorney from Fairfax, Va., and author of numerous books on the Second Amendment.

Noting that there was "very little federal law in terms of free speech until the 1920s, '30s, and '40s," he adds that this case has the potential to change the course of American

jurisprudence. "If the Circuit Court affirms the lower court, and if the Supreme Court agrees with the appellate court, laws that restrict the possession for those who haven't committed crimes will be overturned, and the right of the individual to keep and bear arms will be affirmed."

Framers' intentions

Conversely, many constitutional scholars argue that the framers wrote the Second Amendment not to protect individual rights per se, but as a way to encourage state militias and to keep the federal government from having the only standing army in town.

"The Second Amendment was adopted clearly to push the federal government to allow state militias," says Paul Finkelman, a law professor the University of Tulsa in Oklahoma.

The biggest concern of the colonists was that the federal government would begin to use its military power to push states around, he says, and "there is nothing in the record to suggest that this was a protection of an individual right."

In addition, muskets in the 1770s were not as effective as the rifles and revolvers developed later. Militarily, muskets were more useful collectively, sending a barrage of lead shot into enemy lines the way that medieval archers shot arrows over castle walls.

"There was no real serious discussion in the 18th century about an individual right to bear arms free of the regulation of the state," because firearms of the 18th century "were not very useful weapons," says Jack Rakove, a historian at Stanford University in Palo Alto, Calif.

"The framers couldn't imagine the debate we're having right now," he says. "If you wanted to kill someone, you were better off grabbing an ax or a knife than a gun."

Whether such arguments, on either side, will prove persuasive before the Fifth Circuit Court has yet to be seen. Some legal observers say the court may decide to dodge the constitutional question and focus instead on the less exciting question of whether the domestic-violence statute gives adequate due process.

But no matter which way the Fifth Circuit Court decides, the issue of gun control will not be going away any time soon.

"No matter how the court decides, and no matter how the Supreme Court decides, it's pretty clear the federal government can still regulate weapons," says James Jeffries, a gun-rights attorney. "It's not clear what the impact would be if the prosecution wins, but it would tend to diminish the ardor of [gun-control advocates like Sen.] Charles Schumer to have a new gun law each week."

(c) Copyright 2000. The Christian Science Publishing Society