Judges upheld ban on possession in academic victory for gun lobby

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Judges upheld ban on possession in academic victory for gun lobby By Matthew S. Nosanchuk The nation's gun lobby is still cheering the 5th Circuit Court of Appeals' decision in U.S. v. Emerson, but its enthusiasm may be short-lived. Timothy Joe Emerson, the criminal defendant, had been charged with violating a federal law that banned him from possessing firearms because he was under a domestic violence protection order. He argued that his case should be dismissed because he had a fundamental right - akin to free speech or freedom of religion - to his guns under the Second Amendment to the U.S. Constitution. While under the protective order, Emerson threatened his wife and child with a handgun. Although one wouldn't know it from the celebratory statements uttered by the gun lobby, Emerson actually lost his case in the court of appeals. All three federal judges agreed that the law banning Emerson's gun possession was constitutional and that the Second Amendment didn't give him the right to possess the small arsenal he had accumulated. So why all the hubbub? In the decision, two of the three judges digress into a lengthy examination of the historical "evidence" regarding the Second Amendment. Unfortunately, this detour quickly wanders into familiar pro-gun territory, where it becomes bogged down in a litany of skewed citations, out-of-context quotes and wishful thinking. At the same time, the two judges ignored a new book, "The Second Amendment in Law and History" (New Press), which makes a strong case that those who argue the Second Amendment was designed to protect the rights of individual gun owners have little understanding of the amendment and the context in which it was adopted. The third judge, Robert M. Parker, rightly concluded that the court had no need to reach the question of whether Emerson has an individual right to have a gun, since under any interpretation of the Second Amendment, he loses. Fortunately for domestic violence victims, the decision unleashes the judges' pro-gun activism in a way that has little real-world impact. While the judges' detour may offer individual rights advocates personal validation, it carries no legal weight. Federal gun-control laws remain intact. And instead of a finding of an absolute constitutional right, Emerson finds himself facing a court date under the law he challenged. Far from representing the foundation upon which efforts to repeal all gun-control laws will rest, the more likely legacy of Emerson will be as an example of conservative judicial activism running roughshod over entire bodies of historical evidence and legal precedents. For at least 60 years - dating back to the U.S. Supreme Court's 1939 ruling in U.S. v. Miller - the courts have repeatedly found that the Second Amendment does not confer an expansive individual right to arms. As recently as September, conservative federal appeals courts in Richmond, Va., and Denver rejected claims that the Second Amendment protects an individual right. The gun lobby's spin on Emerson is but their latest attempt to turn judicial straw into gold. Even their own adherents recognize the limited effect of the decision. Emerson's extraneous discussion on the Second Amendment represents little more than a single pothole in a long and smooth road of judicial precedent on this issue. The gun lobby's hopeful predictions notwithstanding, it's a pothole that more responsible courts soon will pave over. Nosanchuk is the litigation director and legislative counsel at the Violence Policy Center. http://web.thesunnews.com/content/myrtlebeach/2002/01/06/Monop/D05-2006675.htm