Originally published as:
"Appeals Court Affirms Second
Amendment Gun Rights"
Wednesday, October 17,
2001
FoxNews.com
http://www.foxnews.com/story/0,2933,36668,00.html
NEW ORLEANS — In a ruling that is being seen as a near-bullseye for gun-rights activists, a federal appeals court ruled that individuals have the right to buy guns -- unless they have a restraining order for domestic violence against them.
Overturning a district judge's ruling, the 5th U.S. Circuit Court of Appeals on Tuesday decided that it wasn't wrong for authorities to prosecute Timothy Emerson, a San Angelo, Texas, physician, for buying a pistol while under a temporary restraining order. That order was meant to protect his wife and child from him.
But while it might have seemed a setback to gun-rights supporters, the three-judge panel made a point of saying that the Second Amendment preserves individual citizens' "right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training."
"Legally, it's a huge victory in the quest to prove that the Second Amendment is indeed an individual right," David Guinn, Emerson's attorney, said. "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."
The ruling is also a mixed bag for gun-control advocates.
"Their decision on the constitutionality of the violence against women act is a victory for common sense gun safety measures," said attorney Ruchi Bhowmik of the Brady Center to Prevent Gun Violence.
However, the Brady Center said the decision on the Second Amendment goes against established precedent.
Gun-control advocates argue that the amendment only applies to citizen militias such as each state's National Guard.
The reason the court overturned the previous ruling, it said, was because 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.
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 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 the 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.