The Washington Times
Commentary
April 10, 1999 - Section C, Page 1

Posted for educational purposes only.
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Second Amendment rising?

Federal Judge Sam Cummings issued a decision on April 1 that chilled the hearts of gun grabbers across the nation. Judge Cummings struck down as unconstitutional a provision in a 1994 law that routinely turned husbands and others targeted by domestic restraining orders into felons. The Clinton administration is appealing the decision - and this could be a great test case for the Supreme Court to finally resolve one of the areas of fiercest disputes about the Bill of Rights.

Timothy Joe Emerson, a Texas doctor, was placed under a domestic restraining order last September after his wife claimed he had threatened violence against the man with whom she was having an adulterous affair (not an unusual response for a Texas husband). Dr. Emerson had made no threats of violence against his wife or their child; the court did no investigation, but simply slapped on the restraint.

Yet, because of a little known provision in the 1994 Clinton crime bill, Dr. Emerson suddenly became classified as a dangerous felon. The 1994 act decreed that no person under a domestic restraining order can possess firearms. However, neither the county judge nor the local lawyers involved in the case were aware of the federal provision.

Dr. Emerson found out about the law when federal prosecutors indicted him, seeking a five-year prison penalty because he was still in possession of a handgun. Federal Judge Cummings saw this as a violation of due process, since Dr. Emerson was not forewarned about any duty to sell, give away, or surrender his guns.

In many states, domestic restraint orders are issued practically automatically - simply another boilerplate part of divorce proceedings. As Judge Cummings noted, thanks to the 1994 federal law, "a person can lose his Second Amendment rights not because he has committed some wrong in the past, or because a judge finds he may commit some crime in the future, but merely because he is in a divorce proceeding." And because millions of Americans get divorced each year, this creates the opportunity for the U.S. Justice Department to wrongfully prosecute many peaceful gun owners.

Judge Cummings also explained at length the historical origins of the Second Amendment. "The individual right to bear arms, a right recognized in both England and the Colonies, was a crucial factor in the Colonists' victory over the British Army in the Revolutionary War," he noted.

And Judge Cummings did not shy away from recognizing that the Second Amendment was also enacted as a curb on abusive government: "A foundation of American political thought during the Revolutionary period was the well-justified concern about political corruption and governmental tyranny." Discussions on federal gun control measures often focus on whether specific guns serve "sporting purposes." However, if the Founding Fathers had added a clause to the Second Amendment specifying that people will be "permitted to own guns for hunting rabbits," the Constitution would have been overwhelmingly rejected as Americans would have been alerted to how far politicians intended to stretch their power.

The judge's honesty about the Second Amendment's purpose is in sharp contrast to the craven attitude shown by many academics. At a 1997 American Society of Criminology conference, one professor argued that among signs of "hate group ideology" were "discussion of the Bill of Rights, especially the Second Amendment or the Federalist Papers," "discussion of military oppression, in the U.S. or elsewhere," and "discussion of the Framers of our government." Bentley College Professor Joyce Lee Malcolm, who attended the conference session, observed that the professor "was anxious to have militia classified as hate groups because then federal legislation on hate groups would apply to them." Professor Malcolm was surprised that the proposed expansive definition of hate groups elicited no objections from the scholarly audience.

If Judge Cummings' decision is upheld, then other federal gun control laws will also likely be struck down. For instance, the so-called Lautenberg Domestic Violence Prevention Act of 1996 made it a felony, punishable by 10 years in prison and a $250,000 fine, for anyone who has ever been convicted of a misdemeanor of domestic use or attempted use of force against a spouse or child to possess a firearm or a single bullet. (Some states consider even verbal threats to be a "domestic assault.") Experts estimated that the law created 1 million new felons overnight, in part because few people are aware of the bill's retroactive sweep.

Judge Cummings concluded, "The rights of the Second Amendment should be as zealously guarded as the other individual liberties enshrined in the Bill of Rights." It is to be hoped his decision will be read far and wide - and perhaps may even knock some sense into a few members of Congress. It is time for a restraining order on politicians hungry to violate constitutional rights.

James Bovard is the author of "Freedom in Chains: The Rise of the State & the Demise of the Citizen" (St. Martin's Press, 1999).