by Dave Workman
Senior Editor
A cornerstone of the US government’s argument in the case of US v Emerson is the long-held position that the Second Amendment protects a collective right rather than an individual one.
That argument may be on a collision course with the philosophy espoused recently by US Attorney General John Ashcroft.
Ashcroft told CNN’s Larry King in a Feb. 7 interview, “Law-abiding citizens have a right under our Constitution to have firearms.”
That’s not the position of Assistant US Attorney William B. Mateja in Lubbock, TX, who prosecuted Dr. Timothy Joe Emerson for violating an obscure federal gun law while under a restraining order relating to his divorce. When Emerson was declared not guilty by federal Judge Sam Cummings, on the grounds that the federal law violated his Second Amendment right to bear arms, the decision sent a shockwave through the Justice Department, and the Clinton Administration.
Government’s Position
The government appealed the case to the 5th Circuit Court in New Orleans, where Mateja argued the government’s position that the Second Amendment does not protect an individual right. In an exclusive interview with Gun Week, Mateja reiterated that argument.
“Our position,” he stated, “is what it’s been for now many years. There is no individual right contained within the Second Amendment.…It protects only a collective right to bear arms.”
That opinion was supported in a well-publicized letter written to a citizen by former Solicitor General Seth Waxman. That letter became a centerpiece in the effort to rally gunowners to the polls last November, and it has made the rounds on the Internet.
Waxman, a political appointee under former Attorney General Janet Reno, is no longer at the Justice Department, having departed with the Clinton Administration’s exit. Barbara Underwood is acting solicitor general until President George W. Bush appoints someone to fill that position.
Emerson’s case is being watched closely by both sides of the gun rights issue. He was charged under a 1994 federal law that automatically prohibits persons under a restraining order for apparently making threats to his estranged wife and her boyfriend. Emerson had apparently not been advised about the federal statute at the time the order was issued.
Emerson was acquitted in state court of charges relating to the incident. But the federal indictment remained in effect, because Emerson owned a 9mm Beretta pistol while under the order.
In addition to ruling that Emerson’s Second Amendment right had been violated, Cummings also ruled his Fifth Amendment right had been violated when the state judge did not advise him of the federal statute.
Mateja is waiting for the decision of the 5th circuit on the Emerson appeal. If the ruling favors Emerson, and declares the law unconstitutional—thereby affirming the individual right interpretation of the Second Amendment—he could not say whether the decision will be appealed to the Supreme Court.
However, he did hint that the case could go that far.
Acknowledging that the Supreme Court has occasionally handed down rulings in the past that have upset long-held doctrines, Mateja remarked, “Yes courts come to epiphanies, but generally those epiphanies are arrived at by the Supreme Court. Our position is that it’s not the place of the 5th Circuit to come to one of these epiphanies.”
Aggressive District
If the Circuit Court sides with the government in its Emerson ruling, Mateja would not say whether that would open the floodgates in Texas to more aggressive prosecution of federal gun law violations. He did state, “We are an extremely aggressive district in prosecuting gun cases. The ‘Texas Exile’ program prosecutes every gun case and particularly every gun case involving a person who has a violent felony.”
Mateja appealed to Gun Week to straighten out the image that’s been created of him in the coverage of the Emerson case.
“I’ve been portrayed as someone who’s had the strings pulled by the Clinton/Gore Administration,” he said. “But the government’s position (on the Second Amendment) has always been the same.
“The government is not trying to take guns away from the people,” he continued. “We’re trying to construe the Constitution the way we’ve done it for years and years."
He said the “fact that there is not a Constitutional right” for individuals to own firearms, under the current government interpretation of the Amendment, does not mean the government will move to seize those guns. Noting that there is no recognized Constitutional right to own and drive a car, either, but that does not mean people will be told they can’t own or drive cars.
Appeasing Federalists
Mateja argued that the Second Amendment was “a creation” whereby the anti-federalists were appeased by James Madison.
“There was a fear that the government’s right to have a standing army,” he postulated, “that was proscribed by the Constitution would somehow jeopardize the states’ right to rise up against the federal government if the federal government overreached the Constitution and impermissibly violated the Tenth Amendment, which gave states rights. The Second Amendment basically creates a right for the states to be able to arm themselves, i.e., their militias, so as to act as a check against the federal government and its standing army.”
During his “Larry King Live” appearance, Ashcroft also reiterated his promise, made during confirmation hearings, that he would vigorously enforce existing gun laws. Increased federal involvement, as is the case with Project Exile in Virginia, the King County, WA, Firearms Crime Coalition and similar programs around the county, also got the nod from the new attorney general. Those programs are designed to bring the full force of existing federal law against armed violent felons.