Originally published as:
Ruling: Government can limit gun rights in domestic violence cases
10/16/2001
http://www.dallasnews.com/texas_southwest/STORY.e997e772f6.b0.af.0.a4.77c76.html
NEW ORLEANS – The government can restrict a person's Second Amendment right to bear arms if the person is subject to a domestic violence court order, a federal appeals court ruled today.
The opinion overruled a federal judge who said Timothy Emerson of San Angelo, Texas, was wrongly prosecuted for buying a pistol while he was under a temporary restraining order designed to protect his wife and child.
However, the 5th Circuit upheld a key part of U.S. District Court Judge Sam Cummings' ruling – that the Second Amendment protects the right to bear arms for individuals, not just members of government militias.
Although the Second Amendment protects an individual's right to bear arms, "that does not mean that those rights may never be made subject to any limited, narrowly tailored ... exceptions or restrictions," 5th Circuit Judge William Garwood wrote for the panel. The restrictions on Emerson's gun ownership are valid for as long as the court order is valid, the ruling said.
The ruling was a mixed bag for gun control advocates, said attorney Ruchi Bhowmik of the Brady Center to Prevent Gun Violence.
"Their decision on the constitutionality of the violence against women act is a victory for common sense gun safety measures," Bhowmik said.
However, the Brady Center, which filed friend of the court briefs in the case, said the 5th Circuit decision on the Second Amendment goes against established precedent.
The National Rifle Association declined comment and said it would have a statement Wednesday.
The case goes back to 1998 when Emerson's wife, Sacha, filed for divorce and was granted a temporary restraining order against her husband that prevented him from threatening or harming her or the couple's daughter.
Emerson was arrested after he bought a Beretta pistol. The government prosecuted him on grounds that purchasing the gun was a violation of the court order.
Emerson moved to dismiss the indictment on the grounds that it violated his Second Amendment right to bear arms and the due process clause of the Fifth Amendment.
Cummings, of Lubbock, Texas granted Emerson's motions to dismiss on both Second and Fifth Amendment grounds.
The government appealed to the 5th Circuit, which heard arguments in the case last year.
In Tuesday's opinion, Garwood referred in passing to the political arguments over the Second Amendment.
Gun-control advocates argue that the Second Amendment should be read literally, to mean that only members of a "well-regulated militia" have the right to bear arms. Advocates for gun ownership say the amendment should be interpreted to mean that virtually all Americans have the right to own a gun.
The opinion said the amendment preserves Americans' "right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training."
But the court order is sufficient "to support the deprivation ... of the defendant's Second Amendment rights," the ruling said.
The 5th Circuit ruling sends the case back to U.S. district court in Lubbock.