A federal judge in Lubbock takes aim at the Second Amendment.
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When Larry Gene Ashbrook walked into a Fort Worth church last September and opened fire with a semiautomatic handgun, killing seven people before taking his own life, it marked another grisly chapter in the country’s history of gun violence. Ashbrook’s attack added Fort Worth to the growing list of cities that have endured such tragedy while keeping the topic of guns on the front burner: What can Americans do to protect themselves? Though most citizens favor increased gun-control measures, politically the issue is deadlocked. Democrats have pushed for additional laws; Republicans have argued that those on the books need to be enforced more carefully. But because of a decision handed down by a federal judge in Lubbock, the issue may eventually find itself before the United States Supreme Court, and if the ruling is upheld, it could end gun control as we know it.
In February of last year Sam R. Cummings, who was appointed to the federal bench in 1987 by President Ronald Reagan, ruled that the Second Amendment may provide greater rights to gun ownership than what the courts have said in the past. It may even guarantee individual citizens the right to own guns. That may not seem like a noteworthy decision, since many people believe that the Second Amendment already protects individual gun ownership. After all, according to the National Rifle Association 65 million people in the U.S. own at least one gun and 200 million privately held guns are currently in circulation. For sixty years, however, the courts have ruled that the amendment guarantees people nothing more than a “right to keep and bear arms” within a government-regulated militia. According to this view, it does, in fact, grant no individual the right to own a firearm. Based on the precedent Cummings has tried to set, many legal experts believe that the decision, which is now before a three-judge panel at the Fifth Circuit Court of Appeals in New Orleans, could be the first Second Amendment case to reach the U.S. Supreme Court since 1939.
Initially, the case that sparked Cummings’ decision had nothing to do with the battle over guns. In 1998 the marriage between Timothy and Sacha Emerson faltered, and according to court documents, Sacha Emerson began an affair. “She ran off with their mutual friend, a hairdresser,” says David Guinn, an assistant public defender in the Northern District of Texas who later became Timothy Emerson’s counsel in the federal case. “In West Texas a barber is one thing; a hairdresser is another.” In August of that year Sacha filed for divorce and applied for a temporary restraining order against her husband, a standard move in divorce cases. “The restraining order is a shotgun approach to prohibit all kinds of behavior,” Guinn says. “Basically, it freezes the marital estate and gives the judge an opportunity to shake his finger at all the parties and tell them that this is court, not therapy.” What the judge didn’t say was that Timothy Emerson was now subject to prosecution for possessing a firearm while under the restraining order. A few months later, Sacha went to Timothy’s office with their four-year-old daughter to pick up an insurance payment. The couple argued, and Timothy pulled a pistol from his drawer, laid it on the desk, and asked his wife to leave. When she hesitated, he cocked the gun. Eight days later, a federal grand jury indicted Timothy Emerson for unlawfully possessing a pistol while under the restraining order, and the case of United States v. Timothy Joe Emerson moved to federal court.
Timothy Emerson’s lawyer acted quickly to have the indictment dismissed, and on February 26, 1999, Cummings granted his motion, saying that the law used to prosecute him was unconstitutional under the Second and Fifth amendments. In a surprising ruling, he became the first federal judge to use the Second Amendment to strike down any form of gun control. Though he declined to be interviewed for this article, in his written opinion he concluded that an individual’s right to bear arms does exist and that Emerson’s right to do so was violated by the restraining order. In regard to the Fifth Amendment, Cummings said the failure to warn Emerson that he could not possess a firearm violated the amendment’s “due process” clause. He acknowledged the conflict between two basic legal tenets that were at odds in the case: that the ignorance of the law is not an acceptable defense and that individuals shouldn’t be subject to unreasonable criminal prosecutions based on obscure laws. Cummings ultimately sided with the latter and ruled in Emerson’s favor.
So what could the effect of the decision be? When the U.S. Supreme Court last ruled on a Second Amendment case, 1939’s United States v. Miller, it established a precedent that all lower federal courts have followed: A person must show that a firearm is “reasonably related” to service in a militia. The court essentially ruled that the amendment creates a collective right to own firearms but does not protect an individual right to keep and bear arms. During the eighties, though, some legal scholars began to challenge that viewpoint. This new school of thought supported an expanded interpretation of the amendment, saying that its original intent did give individuals the right to own weapons. In his opinion, Cummings cited the thinking of many of the new scholars, which took him squarely against the grain of legal precedent.
“I don’t believe he could have made this decision ten years ago,” says L. A. Powe, Jr., a professor at the University of Texas School of Law. Powe believes that the constitutional argument now favors an expanded interpretation, especially since many reputable scholars have come on board. But he added, “The media have their pet bogeymen, and to them the two most dangerous things in the world are a gun in the hands of a law-abiding citizen and a cigarette.” Laurence Tribe, a constitutional scholar at Harvard University School of Law, disagrees. “Even if the U.S. Supreme Court might in an appropriate case reach conclusions similar to those Judge Cummings reached, his interpretation and application of the Second Amendment does fly in the face of decisions rendered and statements made by the Supreme Court,” he says. “In fact, there is a right to bear arms, but like other rights, it is subject to substantial regulation. The amendment’s reference to a well-regulated militia suggests that Congress has considerable latitude in drawing lines in this area that have a kind of prophylactic character. It is perfectly appropriate for scholars to say the Supreme Court did not take a careful enough look at this last time and not feel bound by what it says, but a lower federal court does not have that freedom.”
Critics of the new interpretation of the Second Amendment have said that they consider the literature primarily partisan work produced by scholars supported by the NRA. In a 1995 piece in the New York Review of Books, historian Garry Wills writes that the vast outpouring of articles during the past decade by lawyers, historians, and criminologists justifying individual gun ownership on the basis of the amendment has changed attitudes toward the amendment. Wills added that the new scholarship mixes “humbug with history” and that “it sometimes seems as if our law journals were being composed by Lewis Carroll using various other pseudonyms.”
Though the Second Amendment challenge has clearly received the most attention in the case, some legal scholars believe that dismissing the indictment on Fifth Amendment grounds may also have an impact. “If upheld, the argument that ignorance of the law can be used as an excuse against prosecution would be far more important than the Second Amendment decision,” says Sanford Levinson, a constitutional expert from the University of Texas law school. “The Second Amendment argument is very narrow because by definition it applies only to guns, but the other argument is a much greater potential weapon.” As to the ruling on the Second Amendment, Levinson believes that Cummings has raised a thoughtful, significant issue. “People who dismiss it as an opinion by a Texas cowboy judge aren’t doing justice to the issue,” he says. The struggle to capture the political and legal high ground on the meaning of the amendment will not be settled anytime soon, however. The Fifth Circuit may not reach a decision until later this year, and there is no guarantee that the Supreme Court will hear the case.
But if the ruling does make it to the high court, justices Clarence Thomas and Antonin Scalia have indicated that they are receptive to expanding the interpretation of the amendment. “I suspect the chief justice of the United States, William Rehnquist, has sympathy for this position,” says Michael C. Dorf, a professor of constitutional law at Columbia University. “If this decision stands up and the U.S. Supreme Court agrees, then I think it is quite possible that many existing gun-control laws would be invalid.”