The case is known as United States of America v. Timothy Joe Emerson. Few
people will be aware of this important legal battle until it reaches the Supreme
Court, perhaps next year.
Briefly, the case began with an ugly divorce fight that took place in Texas
in 1998. As is commonly done in divorce cases, a judge issued a routine
restraining order at the request of Mrs. Emerson. Unfortunately for Mr. Emerson,
nobody told him about a federal law called the Violent Crime Control and Law
Enforcement Act of 1994. This law makes it a federal felony to possess a gun if
subject to a restraining order. Like all good Texans, Emerson kept a gun around
the house and he was convicted of violating this rather obscure statute.
The appeal landed on the desk of one of the few federal judges who believes
the Second Amendment means what it says. He did not think it was fair to deprive
a citizen of an important Constitutional right without a proper hearing, so he
reversed the lower court decision.
To show that he knew what he was doing, he included an impressive 12 page
review of the history of the right to keep and bear arms, starting with the
English common law on which our modern laws are based. His decision was appealed
again by the government. Attorneys for both sides offered their oral arguments
before the 5th Circuit Court of Appeals last week.
I recently spoke with some attorneys who have observed 2nd Amendment issues
in the courts. It seems that good defense attorneys hate to bring up the 2nd
Amendment in court for very good reasons. Since the 2nd Amendment is almost
completely neglected in law school, most lawyers know very little about it. If
they are told anything at all, they hear only that it guarantees the right of
the National Guard to be armed. Since judges attended those same law schools,
this is the interpretation that they normally use. Defense attorneys who argue
otherwise, along with their clients, are dealt with harshly. Therefore, only the
most desperate or incompetent counselors ever use the 2nd Amendment as a
This situation is self perpetuating. Judges see the 2nd Amendment cited by
underpaid public defenders representing the most undeserving clients. Each time
they rule against these hapless counselors and loathsome criminals, another
anti-Second Amendment decision is recorded in legal history. These poorly argued
cases can then be used by government lawyers to show that legal precedent is on
Since judges and government prosecutors occupy a high place in society's food
chain, it is easy for them to deny the standard model of the 2nd Amendment. Its
not that they hate guns. On the contrary, many legal folks are avid shooters and
have substantial gun collections. Like many politicians and celebrities, they
simply believe that their elite status entitles them to keep and bear arms while
they deny that right to the unwashed lower classes.
Of course you won't hear that spoken publicly by anyone in authority. Even
Bill Clinton has made it a point to say that he does not intend to take away
anyone's hunting rifles or shotguns. Note however, that this famous parser of
words never mentioned the 2nd Amendment or a citizen's right to self defense.
To understand the position of the Clinton administration, one should read the
chilling words of the Justice Dept. attorney who represented the government's
position in the Emerson case last week.
One of the three judges asked: "You are saying that the Second Amendment
is consistent with a position that you can take guns away from the public? You
can restrict ownership of rifles, pistols and shotguns from all people? Is that
the position of the United States?"
Government attorney William B. Mateja replied simply: "Yes".
The judge then asked: "Is it the position of the United States that
persons who are not in the National Guard are afforded no protections under the
The response was: "Exactly."
So there you have it. The Justice Department, under the authority of Bill
Clinton, believes that the amendment listed second in the Bill of Rights conveys
only the redundant and useless concept that military units have the right to be
armed. They ask us to believe that "the right of the people" really
refers to the right of the state. Some say this interpretation is Orwellian, or
Marxist, but one thing is certain; the founders would be shocked at how their
words have been distorted.
After two centuries of neglect, there are suddenly scores of recent law
articles that address the original intent of the Second Amendment. The
overwhelming majority support the standard model. The founders, after much
well-documented debate about militias and personal freedom, knew exactly what
they were doing when they agreed on the rigid language, "shall not be
An administration known for twisting the facts has twisted them one more
Second Amendment Law Library
Second Amendment Foundation
United States Court of Appeals for the Fifth Circuit
Jurist: The Legal Education Network
Dr. Michael Brown is an optometrist and gun rights columnist who moderates an
email list for discussion of gun issues in Washington state. He may be reached
or through his web site at: http://www.geocities.com/rkba2000.
Several of Dr. Brown's articles are also hosted on this web site, by clicking here.