Originally published as:
Texas doctor's gun rights curbed by
appeals court
By ED ASHER
Houston Chronicle
Oct. 17, 2001, 12:13AM
http://www.chron.com/cs/CDA/story.hts/metropolitan/1092440
In a gun control case once considered precedent-setting, a federal appellate court has ruled that the government can restrict a person's constitutional right to bear arms if that person is subject to a domestic violence order.
In an opinion made public Tuesday, the 5th U.S. Circuit Court of Appeals overruled a lower court judge who said Timothy Joe Emerson, a family doctor in San Angelo, was wrongly prosecuted for buying a pistol while he was under a temporary restraining order protecting his estranged wife and child.
The 1999 ruling by U.S. District Judge Sam Cummings was seen as possibly precedent-setting, laying the groundwork for challenges to other gun control laws.
Activists on both sides of the gun control issue called Cummings' decision monumental and agreed that it could be the first case in which a judge specifically called an existing law unconstitutional because it infringed on an individual's Second Amendment rights.
However, the appellate court reversed Cummings and remanded the case back to his court for a new trial.
While ruling against Cummings on the major issue in the case, the appellate court did uphold one key part of Cummings' ruling, deciding that the Second Amendment protects the right to bear arms for individuals, not just members of government militias.
Emerson's attorney, David Guinn, could not be reached for comment.
Prosecutors say Emerson's wife, Sasha, filed for divorce in 1998. While they hammered out temporary child support and other preliminary issues, the family court judge issued standard orders in the case, including a temporary restraining order against Emerson.
The order contained wording typical of those issued in contested divorces, including an instruction not to possess a firearm while the order was in force.
Emerson was later indicted in federal court on five counts of violating the restraining order after allegedly brandishing a handgun in front of his wife and her daughter.
Emerson denied the charges. Although he did not have a history of violence, he was charged under the Violence Against Women Act of 1994, a federal law that prohibits gun ownership by someone under a restraining order.
But defense attorneys argued that Emerson has a right to own guns under the Second Amendment and that any law infringing upon that is unconstitutional.
Cummings agreed and ruled that the Violence Against Women Act is unconstitutional. Cummings granted Emerson's motions to dismiss the case.
But the 5th Circuit found otherwise.
While 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," the appellate court said in its ruling.
The restrictions on Emerson's gun ownership are valid as long as the court order is valid, the 5th Circuit said.