The Fort Worth Star-Telegram
June 13, 2000, Page 4Posted for educational purposes only.
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http://www.star-telegram.com/Appeals court to hear gun rights case from Texas Ruling could earn landmark status
Toni Heinzl, Star-Telegram Staff Writer
A Second Amendment case from Texas that could become a landmark on citizens' rights to bear arms will be heard today by a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans.
The National Rifle Association, gun control and law enforcement groups are watching with interest to see what the appeals court will decide in the case of San Angelo physician Timothy Joe Emerson.
The gun lobby and gun control groups have brought in their top lawyers and filed friend-of-the-court briefs in the case.
After U.S. District Judge Sam Cummings in Lubbock ruled last year that the Second Amendment gives individual citizens - not just those organized in state militias - the right to bear arms, legal experts on both sides of the issue joined the fray.
The Texas Rifle Association and other gun control opponents encouraged him to overturn a federal law that prohibits someone from owning a gun while under a domestic violence restraining order.
Opposing Cummings' ruling were a group of 52 legal scholars and historians and 10 national law enforcement organizations who filed briefs in support of gun control.
The case was cast in a national spotlight after Emerson, a family doctor, was arrested and indicted for possession of a firearm while subject to a restraining order after an incident in which he allegedly threatened his estranged wife with a Beretta pistol and pointed it at her child.
His defense attorneys argued that federal prosecutors violated his Second Amendment as well as due process rights. Cummings agreed and dismissed the case. Federal prosecutors appealed Cummings' ruling.
Assistant Federal Public Defender Tim Crooks, an appellate specialist for the Federal Public Defender's Office for the Northern District of Texas, said Emerson was prosecuted under the same laws that have cost many police officers their jobs.
Amendments to the 1968 Federal Gun Control Act passed in 1993/1994 during the Clinton Administration bar those convicted of misdemeanor domestic violence offenses or others subject to domestic violence restraining orders from possessing a handgun.
Emerson was prosecuted for gun possession after the alleged gun brandishing incident, although a judge had never determined whether he was a danger to his estranged wife or to society, Crooks said.
The restraining order applied to Emerson was a "boilerplate formality," Crooks said. It was a standard form, a temporary order that is part of divorce filings in Texas, Alabama and many other states in which the splitting spouses promise not to threaten or harass their exes or destroy property.
There was no hearing in which a judge reviewed factual allegations of threats, harassment or any other forms of domestic violence against Emerson before the gun-brandishing incident, Crooks said.
"The federal law applied in this case violated his rights to due process and his Second Amendment rights," Crooks said. "A fundamental right [the right to bear arms] is taken away from you without any judicial findings whether or not a person is dangerous."
But lawyers for the Center to Prevent Handgun Violence, the sister organization of Handgun Control Inc., view Cummings' ruling as a maverick decision that departed from Supreme Court precedents and broke with the "mainstream viewpoint" acknowledging the authority of Congress to restrict gun ownership.
"Judge Cummings established bad law," said Ruchi Bhowmik, a lawyer for the Center to Prevent Handgun Violence. "He refused to rely on Supreme Court precedent. The Supreme Court has said that the Second Amendment was clearly written for a well-regulated militia - it's not an all-out, unqualified right for an individual to bear arms."
Gun right supporters hope that Cummings' ruling blazes a trail for more freedom from government-imposed restrictions of the right to bear arms.
"So many people are affected who could be found in violation of a federal law for possession of a gun while subject to a temporary restraining order that is routine in divorce filings in Texas and many other states," said Attorney Stephen Halbrook of Fairfax, Va. Halbrook is a specialist on Second Amendment issues who wrote the book That Every Man Be Armed, a classic for gun-control opponents.
Halbrook filed a friend-of-the-court brief on behalf of the conservative Texas Justice Foundation, a group associated with San Antonio businessman Jim Leininger, a generous contributor to Gov. George W. Bush.
The appeals court panel is not expected to rule immediately. It could take up to 12 weeks for the court to issue its decision, court observers said.