2nd Amendment defended by judges
Gun-toting jurists uphold individuals' right to bear arms
By Jon E. Dougherty
© 2000 WorldNetDaily.com
Gun-rights activists from across the country are giddy after word
spread that the Second Amendment's right to "keep and bear arms"
received what court observers said was a fair and equitable
hearing in the Fifth U.S. Circuit Court of Appeals in New
Orleans.
During a presentation of the case to a three-judge panel on
Tuesday, gun-rights activists who observed the proceedings
reported that "the court really beat up on ...government" lawyers
who were arguing that the Second Amendment is a right only
granted to states, not individuals.
Also, a report summarizing the hearing suggested Wednesday that
gun-rights activists may be able to count on more constitutional
support for an individual's right to bear arms from the courts in
the future.
The appeals case stems from an earlier U.S. district court
judge's ruling in Texas on March 30, 1999. U.S. District Judge
Sam R. Cummings in Lubbock ruled in favor of Dr. Timothy Joe
Emerson's claims that his arrest was unconstitutional. Emerson
was arrested while under a restraining order from his estranged
wife for violation of a federal statute prohibiting a person
under such an order from possessing a firearm.
According to pro-gun author Neal Knox, Judge Harold R. DeMoss,
Jr., a George Bush appointee, told government lawyers they were
misreading a prior Supreme Court ruling from 1939 on which they
were basing their argument.
That case, Miller vs. 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 weapons -- such
as so-called "assault rifles" -- have been banned in the U.S.,
even though they do have immense military value.
Cummings made similar observations in his earlier ruling.
Court observers said DeMoss asked federal prosecutors if
Emerson's Beretta Model 92 9mm pistol isn't the type used by
armies. Of course it is, noted Knox, "it is the standard U.S.
sidearm."
DeMoss also raised a "critical" 10th Amendment issue, the report
said.
"I have a 12 gauge and 16 gauge shotgun and a .30 caliber deer
rifle in my closet at home. Can you tell me how those affect
interstate commerce?" the judge asked prosecutors.
According to the report, Judge Robert M. Parker, a Carter
appointee who was moved to the appellate court by President
Clinton, told the government, "I don't want you to lose any sleep
over this, but Judge Will Garwood (the senior judge) and I
between us have enough guns to start a revolution in most South
American countries."
Court observers told the Knox Report that there "was no
reluctance" to discuss Second Amendment issues, unlike in "most
firearms-related court cases." One observer, Linda Thomas of
Houston, told Knox that the judges had done their homework.
"It was like sitting in on a Gun Rights Policy Conference legal
seminar," she said.
"If the Fifth Circuit concurs with the trial judge that the
Second Amendment protects gun ownership as an individual right --
which now seems quite possible -- there would be a conflict
between the circuit courts, almost guaranteeing a Supreme Court
hearing after the next election," Knox said on Wednesday.
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 U.S.
Constitution.
While the court 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."
Court officials told WorldNetDaily that the justices were under
no time limit to issue a ruling, and they had no indication
yesterday when that ruling could come.
Jon E. Dougherty is a staff reporter for WorldNetDaily.
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