Texas Case Could Redefine Gun-Control Laws ; It Seeks to Clarify Whether Constitution Gives Individuals or Militias the Right to Bear Arms

Article excerpt

Like many spouses going through a messy divorce, Timothy Emerson was placed under a restraining order, forbidding him to have contact with his wife.

But when Dr. Emerson took a gun and used it to threaten his wife and daughter, the physician from Lubbock, Texas, didn't just violate that restraining order, prosecutors say. He also violated a federal law that prohibited someone under a restraining order from even possessing a gun.

Now, the case of US v. Emerson, under consideration by the US Fifth Circuit Court of Appeals in New Orleans, has sparked an unlikely court battle over whether the US Constitution guarantees the right to bear arms to individuals, or only to state militias. And legal experts say a decision here could help set the future course of US federal court decisions on the controversial issue of gun rights.

"This case could be a revolution in the court's view of the Second Amendment," says Richard Brudzynski, an attorney for the Potomac Institute in Bethesda, Md., referring to the constitutional amendment covering the "right to keep and bear arms." The group has filed a friend-of-the-court brief on behalf of the prosecution.

Defining the Second Amendment

For the past 60 years, most constitutional scholars thought there was little left to say about the Second Amendment.

In 1939, the US Supreme Court ruled that the federal government had the right to restrict the possession of certain weapons, and most lower courts basically followed that precedent. But in the past 10 years, as the number of federal and state gun-control laws has risen, debate has become increasingly heated about just what the Second Amendment really means.

Specifically, did the framers intend gun rights to be accorded to individuals, or merely to state militias?

The charge that brought Emerson into federal court in the first place was based on a 1994 federal law meant to protect women in divorce cases by keeping their spouses from possessing guns. But in April 1999, federal district Judge Sam Cummings of Lubbock overturned that law, saying it violated the spirit of the Second Amendment and "an individual's right to bear arms."

Even Emerson's supporters say he makes an unsympathetic test case for the Second Amendment. "Emerson is not the greatest teaching vehicle that we can have," says Brannon Denning, a law professor at Southern Illinois University, who filed a friend-of-the-court brief, arguing against the federal domestic-violence statute.

The reason, he says, is that Emerson's arguments will always be tainted by the circumstances of his case. "I have a right to keep and bear arms so I can shoot my wife in a divorce," he says mockingly.

Even so, Mr. Denning filed his friend-of-the-court brief because he "doesn't want to let another court of appeals case go by" that "glosses over" past decisions by the Supreme Court.

Ambiguous wording

At the crux of this debate is the somewhat ambiguous wording of the Second Amendment itself: "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. …