Originally published as:
5th Circuit Gives Ammo to Both
Sides in Gun Control Debate
Court says individuals have right to
firearms but Congress may place limits
John Council
Texas Lawyer
October 22, 2001
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In the most comprehensive ruling on the Second
Amendment in modern history, the 5th U.S. Circuit Court of Appeals ruled last
week that individuals have the right to own firearms, yet Congress may limit
that right.
The decision is the first in decades to hold clearly that the right to bear arms
belongs to ordinary citizens -- not just to the military or a "well
regulated militia."
Groups on both sides of the gun control debate view the decision, U.S. v.
Emerson, as groundbreaking. Several appellate lawyers believe the closely
watched case eventually will go to the U.S. Supreme Court.
The case involves Timothy Joe Emerson, a San Angelo, Texas, doctor who was
prosecuted in federal court after authorities determined that his ownership of a
pistol violated 1994's Violence Against Women Act.
The act prohibits people who are the subject of a protective order from owning
guns. Federal prosecutors indicted Emerson in 1998 for violating the act while
the subject of a protective order filed by his wife as part of a divorce
proceeding.
On March 30, 1999, U.S. District Judge Sam Cummings of Lubbock, Texas, decided
that VAWA violated Emerson's Second Amendment rights and dismissed the
indictment. The government appealed.
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."
Emerson and its Second Amendment issues are tailor-made for the gun
control debate. The gun rights lobby believes the amendment means that people
have an "individual" right to own firearms. Gun control advocates
believe the amendment grants a "collective" right to gun ownership
only to militia members.
Senior Judge Will Garwood, who's no stranger to gun control cases, wrote the
opinion in Emerson. In 1993, Garwood penned U.S. v. Lopez, a
decision that struck down Congress' Gun-Free School Zone Act. The act made it a
federal crime to possess a firearm within 1,000 feet of a school. The U.S.
Supreme Court upheld Lopez in 1995 and some experts believe the same
thing will happen in Emerson.
In Emerson, Garwood traced the history of the Second Amendment to its
origins in the 1787 Constitutional Convention, finding it applies not only to a
well-armed militia, but also to individuals.
Yet Garwood, joined by Judge Harold R. DeMoss Jr., found that an individual's
right to own a gun may be limited. The majority also held that VAWA infringed on
Emerson's Second Amendment rights.
"The Second Amendment does protect individual rights, that does not mean
that those rights may never be made subject to any limited, narrowly tailored
specific exceptions ... ," Garwood wrote in remanding Emerson's case to the
trial court. "It is clear that felons, infants and those of unsound mind
may be prohibited from possessing firearms."
In a separate concurrence, Judge Robert M. Parker agreed with the outcome of the
decision, yet he winced at the majority's decision to put a stamp of approval on
the individual right to bear arms. Parker believed that it was not necessary to
answer the long-debated individual-collective right question to resolve key
issues in Emerson.
"No doubt the special interests and academics on both sides of this debate
will take great interest in the fact that at long last some court has determined
(albeit in dicta) that the Second Amendment bestows an individual right,"
Parker wrote. "The real issue, however, is the fact that whatever the
nature or parameters of the Second Amendment right, be it collective or
individual, it is a right subject to reasonable regulation.
"The debate, therefore, over the nature of the right is misplaced,"
Parker added. "In the final analysis, whether the right to keep and bear
arms is collective or individual is of no legal consequence."
FIGHT FOR THE RIGHT
Oddly enough, leaders on both sides of the gun debate say Emerson is a
victory for them. That conclusion is easy to reach because the opinion has
something each side can grab onto: individual rights for the gun lobby and the
ability to limit those rights for the gun control activists.
"That's the interesting thing and the brilliant thing about the way this
opinion is written," says David Schenck, a partner and appellate lawyer in
Dallas' Hughes & Luce. "They explain why the Second Amendment counts.
But then they say, like the right to speech, that it's not unlimited."
The opinion surely will figure into any challenges to gun control laws, says
Schenck, who filed an amicus brief in Emerson on behalf of the Texas
State Rifle Association, as did dozens of other groups involved in the gun
control debate. Schenck believes the decision will make it harder to restrict
the access to guns to anyone, as long as they aren't a "criminal or a
lunatic."
"There's been an explosion in the last decade or so of federal legislation
concerning firearms that infringes on the right to bear arms," Schenck
says. "I think [Emerson] raises the question whether that stuff is
constitutional. And I think the answer to that question is probably 'no.' "
But one academic is not as impressed with the majority opinion in Emerson.
"Not only does the panel majority show a lack of judicial restraint,"
says Neil McCabe, a criminal law professor at South Texas College of Law,
"I think what they've done can better be characterized as unconstitutional
since federal courts are not permitted to give advisory opinions and that's what
they've done on the issue of whether there is an individual right or a
collective right in the Second Amendment."
Adds McCabe, "In doing so they have violated their oath of office in which
they pledged to obey the Constitution."
Bob Dowlut, general counsel of the National Rifle Association, says there's
nothing radical or outlandish about the 5th Circuit's decision, given the
judicial history of the Second Amendment. Since the 1800s, courts have ruled
that individuals have a right to bear arms. But that right was weakened in the
1930s as judges and lawmakers tried to crack down on gangsters by restricting
access to weapons, he says.
U.S. v. Miller, a somewhat murky 1939 gun control opinion by the Supreme
Court -- which the 5th Circuit cited heavily in Emerson -- was part of
that trend, Dowlut says.
"But at least right now the average American citizen ... they believe they
have an individual right to keep and bear arms," Dowlut says. "And
what this court has said is 'yes, we simply agree with the obvious. And we
disagree with decisions after the nullifications of this right.' "
Mathew Nosanchuk, litigation director of the Washington, D.C.-based Violence
Policy Center, says the decision is also good news for those who advocate gun
control.
"To my mind, it's a victory for federal gun control law, it's a victory for
advocates [against] family violence and it's a loss for Dr. Emerson,"
Nosanchuk says. "The court rejected Dr. Emerson's claim that his Second
Amendment right had been violated. It does not bode well for the NRA's efforts
to have gun laws struck down on Second Amendment causes."
Lawyers who represent Emerson say they will likely ask the 5th Circuit for en
banc review of the case. They believe Emerson's due process rights were given
short shrift by the 5th Circuit because their client, a gun collector, was not
notified that his hobby became a federal offense when he became the subject of a
protective order.
"We think that there is validity that due process is required when
otherwise innocent conduct is transposed into felony conduct," says Peter
Fluery, a federal public defender in Fort Worth who represents Emerson on
appeal.
Bill Mateja, an Assistant U.S. Attorney in Lubbock who prosecuted Emerson, says
the doctor had plenty of notice -- Emerson filled out a federally mandated form
before he bought a pistol advising him that he could not own a firearm if he was
the subject of protective order.
"We're extremely pleased that we're going to get a chance to continue our
prosecution of Dr. Emerson," Mateja says.
David M. Guinn Jr., a former federal public defender who represented Emerson in
the trial court, appreciates that the 5th Circuit held that the Second Amendment
is an individual right. But he believes the court didn't go far enough.
"I think this should be an elevated right like political speech or freedom
of religion -- one that cannot be diminished," Guinn says.