The Clinton Administration’s Department of Justice (DOJ) claimed that there is no constitutional right for any individual American to possess firearms of any kind during oral arguments before a three-judge panel of the 5th US Circuit Court of Appeals, which was reviewing a lower court decision in US v Emerson.

Even membership in a National Guard unit does not confer a right to keep arms at home, Assistant US Attorney William B. Mateja told the judges during the hearing.

The government’s position seemed to startle even the judges who were questioning attorneys for Dr. Timothy Joe Emerson and the government, which had appealed the pro-rights decision of federal District Court Judge Sam Cummings in a gun case that percolated up from a simple divorce proceeding in Texas.

The case stems from Cummings’ March 30, 1999 ruling on Emerson’s claims that his arrest was unconstitutional. Emerson was arrested while under a restraining order (RO) from his estranged wife for violation of the Lautenberg provisions of federal law, prohibiting a person under such an order from possessing a firearm.

Emerson was issued a boilerplate RO in the middle of a divorce. There were 22 orders in the RO, and three of them said, basically, that he had to stay away from his wife. Since 1994, federal law prohibits a person who is under a restraining order—even if there is no evidence of a threat of violence—from purchasing firearms.

In his initial trial held in Cummings’ court, Emerson claimed the federal statute he was charged under violated his Second and Fifth Amendment rights, as well as the 10th Amendment to the US Constitution.

While Cummings’ decision upheld the statute under the 10th Amendment, it ruled that the law in question, 18 USC, §922 (g)(8), was indeed a violation of Emerson’s Second and Fifth Amendment rights.

“[The statute] is unconstitutional,” Cummings wrote in regards to the Second Amendment, “because it allows a state court divorce proceeding, without particularized findings of the threat of future violence, to automatically deprive a citizen of his Second Amendment rights.”

Regarding the Fifth Amendment, Cummings said because the statute “is an obscure, highly technical statute with no [prior notice] requirement, it violates Emerson’s Fifth Amendment due process rights to be subject to prosecution without proof of knowledge that he was violating the statute.”

The three judges hearing the appeals arguments in June were: William Garwood, appointed by President Reagan; Harold R. DeMoss Jr., appointed by President Bush, and Robert M. Parker, appointed by President Clinton. Emerson’s side in the case was argued by Timothy Crooks, a public defender who is assigned appeals rather than the original Emerson lawyer, David Guinn, who raised the Second Amendment issues in the case. Also arguing the response against the government was Charles J. Cooper, representing Bill Pryor, the Alabama attorney general, who had filed an amicus brief in support of Emerson.

Two pro-gun observers in the New Orleans courtroom—Linda Thomas of Houston, a recent law school graduate, and Tom Gresham, host of the “Gun Talk” radio show—reported that the judges gave the Second Amendment and related constitutional questions a “fair and thorough” airing.

“The judges had done their homework,” Thomas said. “It was like sitting in on a Gun Rights Policy Conference legal seminar.”

“The three-judge panel asked tough questions,” Gresham reported, “and showed that they weren’t buying the government’s assertion that because a firearm once traveled across state lines it was ‘involved in interstate commerce.’ ”

Aside from the Second, Fifth and Tenth Amendment issues in the case, the commerce question is important, because if the firearm is not involved in interstate commerce, the federal government (Congress) has no place in the issue, and it is a state matter.

Gresham reported this exchange:

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: “Yes!”

Gresham said the personal tone of DeMoss’s question was characteristic of the personal tone the judges took throughout the one-hour session.

Thomas and Gresham both reported that the judges 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.

Garwood said to Mateja: “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 replied: “Yes!”

No Protection
Garwood followed up: “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: “Exactly.”

Meteja then said that even membership in the National Guard isn’t enough to protect the private ownership of a firearm.

Garwood asked: “Membership in the National Guard isn’t enough? What else is needed?”

Meteja: “The weapon in question must be used in the National Guard.”

In other words, the Justice Department claims, no one, even if a member of the National Guard, has a right to own guns privately. That argument clearly supports what Handgun Control Inc. and the Clinton Administration has been saying all along—there is no right to the means for self-defense. They have maintained that position, even while claiming that they do not want to take away hunting and sporting rifles, shotguns and pistols.

Gresham noted that the judges seemed to reject the government position which holds 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 years, including that in the Lopez case involving guns in school zones.

It will be weeks or even months before a decision is issued in the Emerson case. Regardless of the tenor of the questioning by the judges, nothing is assured by any means.

However, for those who need some hope, Gresham quotes this final statement to the government lawyers, from DeMoss (Thomas credited Parker with the statement in reports circulated by Neal Knox’s Firearms Coalition and WorldNetDaily.com):

“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 American countries.”

According to Knox’s report based on Thomas’ notes, DeMoss told government lawyers they were misreading a prior Supreme Court ruling from 1939 on which they were basing their argument.

That case, Miller v United States, found that because a sawed-off shotgun was of “no military value,” citizens were forbidden to have them. However, DeMoss reportedly chided government lawyers because the 1939 case did nothing to establish an individual’s right or a state’s right in the Second Amendment.

Also, the court noted, in the Miller case, sawed-off shotguns were found to have “no military value,” but other firearms—such as so-called assault rifles—have been banned in the US, even though they do have immense military value.

Cummings made similar observations in his March 1999 ruling.

Thomas said DeMoss asked federal attorneys if Emerson’s Beretta Model 92 9mm pistol isn’t the type used by armies. That’s when they got into the exchange involving the National Guard question.

The Emerson case could prove to be pivotal to the individual right to keep and bear arms. Regardless of how the 5th Circuit Court of Appeals rules, one side or the other is expected to appeal to the Supreme Court. Should the high court decide to consider the case, the court’s decision is expected to provide a definitive interpretation of what the Second Amendment really means. For a complete background on the Emerson case, including the original decision by Cummings and all of the defense and government briefs—as well as amicus briefs on both sides which more thoroughly argue specific legal issues, see the Second Amendment Foundation web site: http://www.saf.org/EmersonViewOptions.html.