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Neal Knox Report That more than offsets this week’s disappointing narrow loss of the Missouri concealed carry referendum for it will have far-greater long-term effect. The Lubbock, Texas, judge dismissed a criminal charge against San Angelo physician Timothy Joe Emerson who was indicted under Sec. 922(g)(8) of the Gun Control Act for possessing firearms while under a routine restraining order issued during a divorce proceeding. Judge Cummings’ 33-page memorandum opinion – 23 pages devoted to the Second Amendment – reads like a meticulously researched law review article. He found: “It is absurd that a boilerplate state court divorce order can collaterally and automatically extinguish a law-abiding citizen’s Second Amendment rights, particularly when neither the judge issuing the order, nor the parties nor their attorneys are aware of the federal criminal penalties arising from firearm possession after entry of the restraining order.” Judge Cummings wrote: "A historical examination of the right to bear arms, from English antecedents to the drafting of the Second Amendment, bears proof that the right to bear arms has consistently been, and should still be, construed as an individual right. " The Judge noted Chief Justice Rehnquist’s majority opinion in U.S. v. Verdugo-Urquidez, a 1990 case, that “the people” referred to in the Second Amendment’s “right of the people to keep and bear arms” were the same individual citizens referred to in the First, Fourth, Fifth and Ninth Amendments. Government prosecutors argued that it was “well-settled” that the Second Amendment was a collective state right, applying only to militias such as the National Guard. They have already filed their notice of appeal. The case, U.S. v. Emerson, could go to the Supreme Court. The only Second Amendment case in this century, U.S. v. Miller, 1939, did not address individual rights, but hinged on whether a short-barreled shotgun "is any part of the ordinary military equipment." No evidence was presented that such guns have been used in every U.S. war because the Supreme Court heard only one side argued – to NRA members’ lasting dismay. Citing University of Texas Law Professor Sanford Levinson’s Dec. 1989 Yale Law Journal article, “The Embarrassing Second Amendment,” Judge Cummings pointed out that the Miller decision could be read to mean that a ban on handguns or “assault weapons” is unconstitutional for both are unquestionably militia arms. (Although not noted, under Sec. 311, Title 10, U.S. Code, all able-bodied citizens except the military and government officials are members of the unorganized Federal militia, created by the First Congress just six months after the Second Amendment was drafted.) Dr. Emerson's attorney, David Guinn, a former NRA member who works for the public defender’s office in Lubbock, said: "This is the single most significant ruling in the last 65 years on the second Amendment.” The 5th Circuit, which considers Texas appeals, is perhaps the most favorable appellate court in which a Second Amendment appeal could be brought. If that court were to overrule Judge Cummings’ ruling, the Supreme Court could again decline to consider a further appeal. (Prof. Levinson noted in “The Embarrassing Second Amendment” that the "the Supreme Court has almost shamelessly refused to discuss the issue.") However, if the 5th Circuit upheld Judge Cummings on Second Amendment grounds it would almost force the Supreme Court to consider Emerson, for at least three appellate court decisions have declared the Second Amendment to be a state right rather than an individual right. But either court could again sidestep the Second Amendment issue if they upheld
Judge Cummings’ ruling that the “restraining order gun ban” violated the
Fifth Amendment, then ignored the Second Amendment question. Passage or rejection of additional gun laws would continue to depend on which side could muster the greatest political clout. A bad Second Amendment decision would have the perverse effect of increasing gunowners’ political power by activating complacent gun owners. Judge Cummings’ decision is a win-win! |
