Originally published as:
By THE ASSOCIATED PRESS
October 17, 2001
http://www.nytimes.com/aponline/national/AP-Second-Amendment-Appeal.html?searchpv=aponline
NEW ORLEANS (AP) -- Citizens have a broad right to bear arms, but the right may be restricted if a person is under a domestic violence court order, a federal appeals court ruled.
The 5th U.S. Circuit Court of Appeals on Tuesday overturned a district judge's decision that Timothy Emerson, a San Angelo, Texas, physician, was wrongly prosecuted for buying a pistol while under a temporary restraining order meant to protect his wife and child.
The appeals court sent the case back to Texas for trial. But in its ruling, the three-judge panel also took a step into a long-fought debate over the intent of the Second Amendment of the Constitution.
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.''
Gun-control advocates argue the wording should be taken 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 almost all Americans have the right to own a gun.
Generally siding with the gun ownership advocates, the appeals court wrote that the Second 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.'' However, the court said, the restraining order against Emerson was sufficient ``to support the deprivation ... of the defendant's Second Amendment rights.''
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 court's ruling said the restrictions on Emerson's gun ownership were valid for as long as the restraining order was valid.
``Legally, it's a huge victory in the quest to prove that the Second Amendment is indeed an individual right,'' said David Guinn, Emerson's attorney. ``More importantly for Dr. Emerson, it's a very, very sad day. The consequences of fighting unsuccessfully with the federal government are usually pretty harsh.''
Guinn said he would request a hearing before the entire appeals court and might ask that the case be heard by the U.S. Supreme Court.
The Supreme Court has ruled only once -- in 1939 -- directly on the scope of the Second Amendment. In that ruling, it said there is no right to own a sawed-off shotgun in the absence of ``some reasonable relationship to the preservation or efficiency of a well regulated militia.''
Assistant U.S. Attorney Bill Mateja said he was pleased with Tuesday's reversal but declined further comment until he could review the opinion.
The ruling is 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 said the decision on the Second Amendment goes against established precedent.
Jim Baker, chief lobbyist for the National Rifle Association, said in a telephone interview from Washington that the NRA was ``extremely pleased'' with the ruling.
``Clearly, the 5th Circuit has held that the Second Amendment is an individual right. For the first time in modern legal history a court of appeals has held that it is not a collective right.''
He said he hopes other circuits will now use Tuesday's ruling in considering other cases.
The Texas case goes back to 1998 when Emerson's wife, Sacha, filed for divorce and was granted a temporary restraining order to prevent her husband from threatening or harming her or the couple's daughter.
Emerson was arrested after he bought a pistol and was prosecuted on grounds that purchasing the gun was a violation of the order.
District Judge Sam Cummings of Lubbock, Texas, granted Emerson's motions to dismiss the indictment on both Second Amendment and Fifth Amendment grounds. The government appealed to the 5th Circuit, which heard arguments in the case last year.
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On the Net:
United States vs. Emerson, Case 99-10331: