Deep impact

Federal public defender Timothy Crooks argues that the Second Amendment gives the "people" the right to bear arms. Federal prosecutors disagree.
Alyssa Banta

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. --The Second Amendment to the Constitution, approved in 1791

Texas, it would appear, has become a lightning rod for the nation's most volatile political and social issues. First there was the still-ongoing abortion debate, flamed by the Dallas-based case of Roe vs. Wade. Then came the University of Texas School of Law-spawned anti-affirmative action court ruling that continues to cause waves nationwide. More recently, the Supreme Court voted 6-3 that student-led prayer before football games in a small south Texas community violated the separation of church and state and should be banned. And, of course, there's the hot-button matter of capital punishment, which has of late been squarely focused on cases tried in local courtrooms.

And now, born of a less-than-amicable divorce in the West Texas city of San Angelo, comes the latest: a test of the Constitution's Second Amendment that has both gun lovers and haters anxiously awaiting new high court decisions. One way or another, the impact promises to be significant.

The issue: Does the Second Amendment actually promise every law-abiding, legal-age individual, from Bubba to the Brooks Brothers, the right to own a firearm? Or, when written, was it specifically intended only for those citizens who were part of peacekeeping state militias, the National Guard of the 18th century?

Earlier this month the matter was argued to the 5th Circuit Court of Appeals and, regardless of that New Orleans panel's decision (which isn't likely to come until late summer at the earliest), whoever loses is almost certain to put the issue on a fast track to the Supreme Court. Ultimately, someone--the gun ownership-advocating National Rifle Association or the gun control-minded Handgun Control Inc.--is going to be unhappy.

The case, U.S. vs. Emerson, actually began in a Tom Green County divorce court in 1998 when a restraining order was issued against Dr. Timothy Emerson, a family practitioner, ordering him to stay away from his estranged wife, Sacha. At the time Dr. Emerson was the owner of a 9mm Beretta pistol. According to the 1994 Violence Against Women Act, passed by Congress to protect women from spouses during divorce proceedings, he was automatically in violation of the federal statute simply by owning the firearm while under a restraining order. The crime carries a maximum sentence of 10 years in prison. Emerson says no one bothered to inform him such a law existed.

Ultimately, the matter landed in federal court after Emerson's wife told authorities that the doctor had threatened her.

Last April, Lubbock U.S. District Judge Sam Cummings ruled for the first time in judicial history that the Second Amendment does, in fact, guarantee an individual the right to own a weapon. In effect, he struck down the '94 law, ruling that it violated an individual's right to legally possess a gun.

It was that ruling that Lubbock-based Assistant U.S. Attorney Bill Mateja recently argued against before the 5th Circuit. "The framers of the Constitution intended for the right to apply only to state militias," he insists. "We argued that no court in history has proved the individual's right to bear arms--despite a widespread public misconception.

"Historically, the general public has never focused any attention on the 'militia' part of the Amendment, reading only the 'right to bear arms' phrase."

Federal public defender Timothy Crooks, 39, of Fort Worth, who argued the case in Emerson's behalf, offers a different view. "The Constitution clearly distinguishes between 'the people' and 'the States,' he wrote in his court brief. "The amendment," he suggests, "singles out the right of the people. I think there is a very strong argument in this case."

A second argument that Crooks offers is a due-process issue--providing evidence that a person presents some degree of danger to others before it is ruled unlawful for him to possess a gun. At the time the restraining order against Emerson was issued, there was no judicial finding that the doctor might be a threat to his wife.

"Even the state judge presiding over the divorce proceedings testified at the federal trial, pointing out that the restraining order he issued was nothing more than boilerplate law," Crooks says. "Under the law that Judge Cummings ultimately ruled against, Dr. Emerson could not have even had a gun that was locked away in a safe in his garage. One of the things we're saying is that he [Emerson] should have been found to be a dangerous person before he was charged with illegal possession of a firearm."

Handgun Control Inc., has joined into the debate, filing a friend-of-the-court brief to argue against the individual right to ownership. If gun possession is legally defined as a constitutional right, Handgun Control general counsel Dennis Henigan told USA Today, current guns laws would be dramatically weakened and some cases struck down if the lower court decision is upheld.

The NRA, meanwhile, admits anxiety as the matter winds its way through the legal system. An adverse ruling by the courts could dramatically affect its stance that all law-abiding citizens are guaranteed the right to own weapons.

Southern Methodist University law professor George Martinez, a specialist in Constitutional law, agrees that if the 5th Circuit should decide that the Second Amendment does not apply to individual rights, the gun-control movement would likely gain great momentum. "Were that to happen, it would not only encourage legislators to pass more gun laws but, more importantly, would increase the likelihood of the courts' upholding them," he says.

How likely is such a decision? "In light of the fact the 5th Circuit is a generally conservative court, I would be quite surprised," the 45-year-old professor says.

The question then becomes how the issue would fare at the Supreme Court level, where at least two of its justices seem to favor the individual-rights argument.

Only once before has the Supreme Court ventured into the interpretation of the controversial Second Amendment. In 1939, it reviewed a case that questioned whether a sawed-off shotgun owned by a bootlegger and transported across state lines could be considered a "militia weapon." A hot-potato issue even then, it was quickly returned to a lower court and no decision was made because the bootlegger was killed in a "business-related dispute" before the case could be ruled on.

To date, then, the matter has been more fodder for discussion by Constitutional scholars than legal argument. "Historically, there has been a group that supports the 'militia' interpretation and another that feels the Second Amendment affords individual rights," Martinez says. "But one of the most interesting things about all this is the fact there is virtually no case law related to the matter. Whatever decision comes down will provide a new basis for future arguments to the court."

Doubtless, a media frenzy likely awaits should the case climb the judicial ladder. Already, says attorney Crooks, he has been contacted by 60 Minutes, 20/20, and the National Law Journal. "If the 5th Circuit does rule in our favor," Crooks says, "I'd guess that it is almost certain the case will go to the Supreme Court and receive considerable attention."

Assistant U.S. Attorney Mateja, meanwhile, is quick to point out that Dr. Emerson "is hardly a poster child for the gun-rights advocates." In a separate and still ongoing state case, it is alleged that in mid-November of '98, two months after the routine restraining order had been issued, Emerson did brandish a pistol in a threatening manner. According to court documents, Sacha Emerson says she and the couple's 4-year-old daughter went to the doctor's office to pick up an insurance payment. When a disagreement broke out, her husband allegedly pulled a gun from a drawer and laid it on top of his desk and asked her to leave. When she briefly hesitated, she says, he cocked the pistol and pointed it at her and her daughter. A witness to the confrontation later testified that Emerson was not seen actually pointing the weapon.

Still, eight days later, Timothy Emerson was indicted for threatening Sacha Emerson, a violation of the restraining order.

And, so, the Great American Gun Debate again moved into high gear. Last week the Bureau of Alcohol, Tobacco and Firearms renewed its call for added gun control as it released a report showing that between 1996 and 1998, more than 40,000 guns were illegally purchased from corrupt dealers at gun shows and flea markets.

There was no mention of how many of those shows and markets were in Texas.

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