Emerson Appeals To Supremes (followup) (12/12/2001)

Josey1

Emerson Appeals To SupremesBy Neal KnoxWASHINGTON, D.C. (Dec. 10) - The Supreme Court will be asked to consider the Second Amendment for at least the fourth time in two dozen years. Odds are they will again decline, but this time could be different...Dr. Timothy Emerson of San Angelo, Texas, won the most important Second Amendment decision in history - a Fifth Circuit Court of Appeals panel's 2-1 declaration in October that the right to keep and bear arms applies to individuals, not to states or the National Guard.But the Circuit Court also ruled unanimously that the 1994 Violence Against Women Act (VAWA), which prohibited him from possessing a gun while under a divorce restraining order, did not violate the Second Amendment. They reversed Federal District Judge Sam Cummings decision finding VAWA unconstitutional and dismissing the charges against Emerson.The Fifth Circuit panel unanimously ordered that Emerson be tried on the original charges.Emerson and his attorneys asked for a hearing before all Fifth Circuit Appellate judges. On Nov. 30 the court refused.So Emerson's attorneys, David M. Guinn Jr. and Aaron Clements, are scrambling to prepare an appeal. But at the same time they are preparing to go to trial.Assistant U.S. Attorney William Meteja, who told the Fifth Circuit in June 2000 that the Second Amendment applied only to National Guard-issued arms - a position slapped down by Appellate Judge Garwood's majority opinion - is again prosecuting Dr. Emerson.Meteja has offered Dr. Emerson a plea bargain that included pleading guilty to a felony and receiving prison time. Tim, a long-time gunowner and reader of these columns, flatly refused.Guinn, who was Dr. Emerson's public defender attorney in the first trial, and who originally raised the Second Amendment challenge to VAWA, is now in private practice in Lubbock, Texas. A trapshooter and gunowner with a personal stake in the outcome of this case, Guinn has taken it with little chance of being paid because Emerson has lost both his medical license and his driving license due to his inability to pay court-ordered child support.I suspect Tim's other attorney has also taken on the case virtually pro bono. Guinn acknowledged to me Friday that they face a "high burden" in getting the Supreme Court to hear the case. In this layman's opinion, unless the court really wants to consider it they're most likely to say it isn't "ripe" because lower court action is still pending.But it's high-stakes poker, for the Supreme Court could agree with the order for a full trial for Emerson while striking down both District Judge Cummings' and Senior Fifth Circuit Judge William Garwood's decisions that the Second Amendment is an individual right.Those opinions both caused major stirs in the press, as has Attorney General John Ashcroft's statements that the Second Amendment is an individual right - which the Justice Department has confirmed to be its official position.Unless and until the Supreme Court acts, Judge Garwood's decision is now law in Texas and Louisiana, the Fifth Circuit's jurisdiction. All those factors could cause the Supreme Court to overcome its reluctance to consider the Second Amendment. How they might finally rule is anyone's guess. Guinn argues that the court isn't likely to get any better. If Sens. Schumer, Leahy and Daschle continue to control the judicial appointment process that's probably true.It would be virtually impossible for any future case to have such powerful, carefully researched decisions affirming Second Amendment individual rights as handed down at both the trial and appellate level. While the Supremes ponder hearing the case, Emerson's trial will be going forward - probably before Judge Cummings, the only judge in the district.Judge Garwood seemed to lay out a roadmap of how to win the new trial using his 80-page Second Amendment decision. He wrote that Second Amendment rights may be infringed only for "narrowly tailored specific exceptions or restrictions."Deprivation of Emerson's Second Amendment rights met that tight standard, he wrote - "though likely barely so." He also acknowledged being "concerned" that there was no specific finding by the divorce court that Emerson represented an actual threat, which is required by Texas law for the issuance of restraining orders. Emerson's new trial gives him the opportunity to win his freedom - and better define Second Amendment rights while using Judge Garwood's Fifth Circuit's standards.It is critical that Emerson's attorneys have all the assets they need to win at either the Supreme Court or District Court level, or both. Second Amendment Foundation is accepting tax-deductible earmarked contributions for the Emerson Defense Fund, 12500 NE Tenth Place, Bellevue, WA 98005. http://www.nealknox.com/sgn/latest.html