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The Washington Times
June 12, 2000

DIVORCE CASE LIKELY TO SEND
GUN CONTROL TO SUPREME COURT
Both sides see opportunity to clarify Second Amendment

By Herbert Sample
McClatchy Newspapers

Inherent in debates over gun control is an acknowledgment that the US. Supreme Court has said very little on the subject in the past 60 years.

That may not be so for long, for what began as a simple divorce proceeding in a small, central Texas town has escalated into a major legal confrontation over the Constitution’s Second Amendment.

Tomorrow, the 5th U.S. Circuit Court of Appeals in New Orleans will confront a case that ultimately could give the nine justices of the Supreme Court their best chance since 1939 to interpret the 27-word amendment.

That potential has stirred antagonist on both sides of the gun-control issue, prodding a score of groups to file friend-of-the-court briefs with the 5th Circuit, and legal scholars of all philosophical stripes to chime in.

"This particular case we feel really excited about," said Alan Gottlieb, head of the Second Amendment Foundation [SAF], a Washington state group that supports gun rights. "Since [SAF’s founding in] 1974, this is the single best case supporting our position."

Ruche Bhowrnik, a lawyer at the Center to Prevent Handgun Violence, a gun-control group, sees equal potential. "Indeed, if this case were to go to the Supreme Court, it would be a great opportunity for the court to elaborate on the meaning of the Second Amendment," she said.

The litigation could be sidetracked from the high court in a number of ways. But as it stands now, no better Second Amendment dispute in a long while has offered the tantalizing potential for the justices to define the boundaries of government restrictions on firearms.

The case began two years ago in San Angelo, Texas, where Dr. Timothy Joe Emerson and his wife of nearly five years, Sacha, were divorcing.

At a hearing on Sacha’s request for a temporary restraining order, she said Dr. Emerson had threatened a friend, a claim Dr. Emerson did not deny. A state judge granted the order but did not explain that a 1994 federal law automatically bars persons under such orders from possessing a firearm.

The law was the brainchild of Sen. Paul Wellstone, Minnesota Democrat, who said during a 1994 Senate floor debate: "In all too many painful cases, the only difference between a battered woman and a dead woman is a gun."

Two months after the restraining order was approved, Dr. Emerson reportedly made threatening remarks to Sacha, and about her to police. Soon after, he was indicted in federal court for possessing a 9 mm Beretta while under the order.

Prosecutors-and most everyone else in the gun-control debate-were shocked when federal District Court Judge Sam Cummings declared the law unconstitutional.

The Second Amendment recognizes an individual’s right to bear arms, Judge Cummings ruled, and thus Dr. Emerson’s right to his Beretta could not be superseded by a statute that requires no specific findings of a threat of violence.

"Although he may not be a criminal at all, he is stripped of his right to bear arms as much as a convicted felon," Judge Cummings asserted. "Second Amendment rights should not be so easily abridged."

The judgment appeared to tilt against numerous district and appellate court decisions around the country, most of which turned on a 1939 Supreme Court case called U.S. vs. Miller. That unanimous ruling upheld a federal law banning sawed-off shotguns because the guns possessed no "reasonable relationship" to use in a "well-regulated militia."

But Judge Cummings said the Miller decision did not determine whether the Second Amendment is an individual right or one held collectively by states and, as a result, no precedent existed and he was free to mold one himself. He also said Dr. Emerson’s Fifth Amendment due-process rights were violated because Dr. Emerson was not warned about Mr. Wellstone’s obscure statute.

The Justice Department quickly appealed to the 5th Circuit, where three judges appointed by Presidents Reagan, Bush and Clinton will hear the case.

Once the 5th Circuit wades through the competing views, it will have to choose whether to decide the case on Second or Fifth Amendment grounds. But that is unlikely to be the last word since the losing party is expected to appeal to the Supreme Court.

And the desire among combatants in the gun-control debate for the court to weigh in is growing.

"There’s certainly some feeling out there that some enlightenment from the Supreme Court would be welcome," said Bob Levy, a constitutional scholar at the Cato Institute, who opposes gun control. "That’s not always sufficient to cause them to take the case."

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