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News & Editorials

The US Government Says Citizens Have No Right to Own a Gun
by Tom Gresham

This is an important case for Second Amendment supporters. For a complete background on Emerson, see the Second Amendment Foundation website:

Neal Knox sent out an alert about this immediately after the arguments were heard, and while I agree with much of that report, Neal wasn't there. Also, because Neal has been in this fight for a long time (as has Linda Thomas, who gave him the report), I think they both might have glossed over something that many gun owners would find amazing. By the way, Neal's email reports are good information, and I suggest that you subscribe to them. He and I don't always agree, but if you take his reports as a part of your research, I think you will find them useful.

I sat next to Linda, which is interesting, in that our notes differ in a couple of places. Such is reporting, I guess. Nothing big, but a few details.

Here are the "Cliff Notes" on the case. Dr. Emerson was issued a boilerplate restraining order in the middle of a divorce. There were 22 orders in the R.O., and three of them said, basically, that he had to stay away from his wife. By federal law (since 1994), a person who is under a restraining order, even if there is no evidence of a threat of violence, may not own firearms. Yes, that's right. You lose a civil, Constitutional right because a judge pushes a key on a computer and a standard R.O. comes out.

The original decision by Judge Sam Cummings is a work of art, tracing the history of government restriction of arms ownership (swords, armor, firearms) back to England, before there was a United States of America. You owe it to yourself to read this decision:

Now, to the appeal in the Fifth Circuit in New Orleans, yesterday. First, let me say that the lawyer (Crooks) representing Emerson was . . . how shall I say this . . . not the best I've seen. However, the attorney from the Alabama Attorney General's office (Cooper) was very good. The A.G.'s office argued on Emerson's side.

The three-judge panel (Garwood, DeMoss, and Parker) asked tough questions, and showed that they weren't buying the government's (federal government) assertion that because a firearm once traveled across state lines, that this gun was "involved in interstate commerce." This is important, because if the firearm is not involved in interstate commerce, the federal government has no place in this, and it is a state matter.

Note this exchange:

Judge DeMoss: "I have a 16 gauge shotgun in my closet at home. I have a 20-gauge shotgun. I also have a 30-caliber rifle at home. Are you saying these are "in or affecting interstate commerce?

Meteja (government lawyer): "Yes"

You'll note the personal tone to Judge DeMoss's question. This personal tone carried throughout the one-hour session.

Veterans of Second Amendment battles understand that the U.S. government takes the position that you do not have a right to own a gun. Many people, however, say "Oh come on, you don't really believe that, do you?"

Well, here it is from the mouth of the lawyers representing the United States government, from my notes at the Emerson case.

Judge Garwood: "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?"

Meteja (for the government): "Yes"

Judge Garwood was having none of that.

Judge Garwood: "Is it the position of the United States that persons who are not in the National Guard are afforded no protections under the Second Amendment?"

Meteja (for the government): "Exactly."

Meteja then said that even membership in the National Guard isn't enough to protect the private ownership of a firearm. It wouldn't protect the guns owned at the home of someone in the National Guard.

Judge Garwood: Membership in the National Guard isn't enough? What else is needed?

Meteja (for the government): The weapon in question must be used in the National Guard.

In other words, no one, even if a member of the National Guard, has a right to own guns privately. That is the position of the U.S. government.

The judges seemed to reject the federalism position of the government which says that once an item has moved across a state line, it is forever covered by federal laws because it is involved in interstate commerce. This rejection seems to be in line with several narrow decisions from the Supreme Court in recent years.

The judges also appeared incredulous that the government was saying that no one has a right to own guns, and that the Second Amendment guarantees only the right of the National Guard to own guns.

It will be weeks or months before a decision is issued on this case, and nothing is assured, by any means. However, if you need some hope, I leave you with this final statement to government lawyer, made by Judge DeMoss:

"You shouldn't let it bother your sleep that Judge Garwood (the senior judge) and I, between us, own enough guns to start a revolution in most South American countries."

Now, what can you do with this information?

1. Write letters detailing the government's position that NO ONE has a right to own a gun. Most people in this country believe that they do, in fact, have the right to own a gun, and they need to know what the government is saying.

2. Explain to your fellow gun owners how important this case is (see point number 1 above), and that it is vital that Al Gore not be elected president, where he can appoint Supreme Court justices. If the Emerson case goes as I hope, it will be appealed to the Supreme Court. We don't want Gore appointees sitting there when this case arrives.

And a personal note: Thanks for your overwhelming support. You are getting your letters published all over the country. Keep 'em coming. Keep 'em SHORT! Stay on point. Pick a single point to make, and stick to it. Save everything else for other letters.


Tom Gresham, host
Tom Gresham's Gun Talk radio show

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