This is an important case for Second Amendment supporters. For a complete
background on Emerson, see the Second Amendment Foundation website: http://www.saf.org/EmersonViewOptions.html.
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. http://www.NealKnox.com.
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: http://www.saf.org/1999Emersoncase2amend.html.
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
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
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
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