The Magazine

Taking the Second Amendment Seriously

Finally, and for good reason, a gun control statute has been struck down as unconstitutional.

Jul 24, 2000, Vol. 5, No. 42 • By NELSON LUND
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TIMOTHY JOE EMERSON is a Texas physician who lawfully bought a pistol in 1997. About a year later, Emerson's wife filed for divorce and sought a temporary injunction containing 29 separate prohibitions, most of them aimed at protecting Mrs. Emerson's financial interests. The proposed order also prohibited various sorts of interference with the couple's child, and it forbade Emerson to threaten or injure his wife or to communicate with her in vulgar or indecent language.

At a hearing on whether to grant the injunction, the state divorce court judge explored the financial circumstances of the couple and decided on the amount of temporary child support Emerson should provide. In her testimony, Mrs. Emerson reported that her husband had threatened her new boyfriend but denied that Emerson had threatened her. The judge issued the injunction, but he made no findings that Emerson was likely to commit any of the 29 separate acts prohibited in the temporary restraining order, many of which were not alluded to in any way during the hearing.

Nothing in the story so far is unusual. It is apparently routine for Texas courts to issue such prophylactic restraining orders in divorce cases, without evidence that the acts prohibited in those orders would otherwise be likely to occur. The story became less commonplace when Mrs. Emerson subsequently accused her husband of brandishing the pistol, and federal prosecutors took up the case. A federal grand jury indicted Emerson in December 1998 for violating an obscure portion of the 1994 Violent Crime Control Act, which is better known for its prohibition of certain so-called assault weapons. The provision used against Emerson appears on its face to impose a ban on firearms possession by any person who is subject to a court order that prohibits him from using or threatening physical violence against an "intimate partner" or that partner's child.

This was too much for Judge Sam R. Cummings, a federal trial judge in Texas, who last year declared the indictment unconstitutional. Cummings reasoned that if the federal statute had been triggered by a court order based on a finding of danger to Mrs. Emerson or her child, forbidding Mr. Emerson to own a gun might be a reasonable regulation. But because the prosecution was based on a boiler-plate order that was unsupported by any such finding, it violated Emerson's Second Amendment right to keep and bear arms.

Had this case concerned any other part of the Bill of Rights, Cummings's analysis would have bordered on the obvious. The law, for example, forbids us to libel other people. But this doesn't mean that anyone who has been officially told to refrain from breaking the libel laws can also be told to remain completely silent, or be barred from possessing a printing press. If it did, a legislature could simply outlaw speech, or printing presses, on the ground that this would help prevent libel. While this sort of sweeping prior restraint might be very effective in preventing libel, it would violate the First Amendment.

Judge Cummings thought that the same kind of analysis should apply to Emerson's case. The law forbids people to cause or threaten bodily injury to others. But how can people be deprived of their right to possess arms merely because they have been told to obey the law? If they could, it would seem to follow that Congress could choose to promote obedience to the laws against murder and assault by forbidding everyone to possess weapons. And the Second Amendment would then mean only that the right of the people to keep and bear arms shall not be infringed unless the government decides to infringe it.

Despite the obvious logic in Cummings's opinion, his decision has created a stir, and rightly so. The federal courts had never before invalidated any gun control statute for violating the Second Amendment. What's more, almost every court of appeals in the country has concluded that this part of the Bill of Rights means nothing at all, or so close to nothing that it might as well not exist.

Cummings's decision, however, is not doomed to inevitable reversal. Unlike most lower courts, the Supreme Court has never decided to boot the Second Amendment out of the Constitution, and neither has the Fifth U.S. Circuit Court of Appeals (which covers Judge Cummings's northern Texas jurisdiction). Those two courts have decided only a handful of Second Amendment cases and always on narrow grounds. It is therefore possible that the long pattern of judicial hostility to the Second Amendment could soon be broken.