4/00 Moving Forward On The Emerson Case
One of the most insidious and outrageous attacks on the Second Amendment right of individuals to keep and bear arms is the attempt to exercise so-called “prior restraint” by denying a person a firearm when there is no reason whatsoever to do this.
One such case we at Gun Owners Foundation (the litigation arm of Gun Owners of America) are involved in, a very important case, involves a citizen in Texas. This case is before the U.S. Court Of Appeals for the Fifth Circuit (No. 99-10331). It’s known as United States v. Emerson. We’re on the side of Timothy Joe Emerson, the defendant.
Under federal law, Emerson was indicted for possessing a firearm while under a routine restraining order issued in the course of a Texas divorce proceeding between him and his former wife.
The district court dismissed the indictment on the grounds that the statute was unconstitutional under both the Second and Fifth Amendments. The U.S. Government appealed this dismissal.
Our argument is very clear: The Second Amendment codifies a fundamental — we would say a God-given — right, an individual right to keep and bear arms, independent of and unrelated to any power of the States to create and maintain a military force, and independent of and unrelated to any power of the government to regulate commerce.
Thus, this right is severely infringed when the mere passive possession of a firearm is criminalized by the issuance of a boiler-plate domestic relations restraining order not based upon any evidence or finding of a threat directed toward the person protected by the order.
In our legal brief defending Emerson, we document in detail, with scores of references, the fact that the Second Amendment says what it means and means what it says. And we note that what is most impressive about this almost total academic consensus is that many of the scholars we quote are either self-identified “liberals” or unconnected with the pro-gun movement.
But, in a tribute to the intellectual honesty of these scholars, they tell the truth about the Second Amendment and what it means — even though some of them are for gun control.
And by agreeing with the true meaning of the Second Amendment, these scholars are in line with members of the US Supreme Court who from 1857 to 1990 have said, in what is known as dicta, that the right to keep and bear arms is a personal and individual right of free citizens.
And this brings us back to Timothy Joe Emerson who is, obviously, a person, an individual. As we argue, his personal, individual Constitutional right to possess firearms was not merely infringed. At the instant the state court judge entered a domestic relations restraining order against him, his Second Amendment right to possess firearms was destroyed, negated, nullified.
Emerson was instantly transformed into a Federal felon and — this must be repeated — this was done even though there was no evidence and no judicial finding that he was a threat to his wife.
The Second Amendment is unfairly and repeatedly singled out for “prior restraint” attacks that would be found totally unacceptable — and have been so found by the courts — if they were launched against any other amendment.
For example, nobody would even think of going to court to try and deny, in advance, someone’s First Amendment free speech right because of what that individual might say if allowed to speak — whether that person was a public speaker, a preacher in a pulpit, a talk show host, an editorial writer or even a judge.
The courts have stated that one cannot use his “freedom of speech” to yell “Fire” in a crowded theater. And yet, no one argues that officials should gag everyone who goes into the theater, thus placing a prior restraint on movie-goers.
The proper response is to punish the person who does yell “Fire.” Likewise, citizens should not be “gagged” before exercising their Second Amendment rights, rather they should be punished if they abuse that right.
In defending our freedoms guaranteed in the Bill of Rights, we must tell the Congress “No prior restraints”!
We, of course, have no idea how the US Fifth Circuit Court of Appeals will rule. But, we hope and pray they will uphold the true meaning of the Second Amendment. This is a bell tolling for all of us.
The Gun Owners Foundation brief, along with the Emerson opinion by Judge Sam Cummings can be found on the web at http://www.gunowners.com/legal.htm.