6/00 An Update On The Emerson Case

U.S. v Emerson: From the Fifth Circuit to the Supremes?
Larry Pratt

A Second Amendment case is likely to end up in the Supreme Court. If the Court as it is now constituted hears the case, it is likely to strike another anti-gun law.

It all started when Dr. Timothy Emerson was going through a divorce. A routine restraining order was placed against him without a hearing or any opportunity for him to defend himself. Nor was there any allegation of violence.

But that was enough under a 1994 federal law to bar him from owning a gun for life. Dr. Emerson ended up in court and a federal prosecutor wanted to put him in jail for the mere possession of a firearm. Federal Judge Sam Cummings ruled that the law is unconstitutional because it violates the individual right to keep and bear arms.

Judge Cummings has launched a torpedo into the already sinking ship of anti-firearms rights scholarship that argues that the Second Amendment only protects a states’ right to have a militia. This is the so-called “collective rights” view.

Well, if Judge Cummings launched one torpedo, the Fifth Circuit Court of Federal Appeals launched three more during the oral arguments over the Emerson case that is now before that court which sits in New Orleans.

Judge Harold DeMoss told the government lawyer that he was mistaken in his view that a case in the last century (the Miller case) established the collective rights view. In fact, he argued that the 9mm. Beretta pistol that Dr. Emerson owned was in fact a militia firearm and specifically protected under the terms of Miller.

DeMoss went on to ask this question for which he is still awaiting an answer from the government: “I have a 12 gauge and a 16 gauge shotgun, and a .30 caliber deer rifle in my closet at home. Can you tell me how those affect interstate commerce.?”

This question goes to the heart of all federal gun control laws. They are all based on the false assumption that the interstate commerce clause justifies federal gun control. The Supreme Court has already shot that assumption down in two other cases.

After that it did not get any better for the government. Judge Robert Parker, originally appointed by President Carter to the Federal judiciary and elevated to the Fifth Circuit by President Clinton, told this to the government: “I don’t want you to lose any sleep over this, but Judge Garwood (the Senior Judge) and I between us have enough guns to start a revolution in most South American countries.”