Federal Court Upholds Second Amendment as an Individual Right!
Federal Judge Sam Cummings of the Northern District of Texas recently dismissed an indictment against Timothy Joe Emerson for possession of a firearm while having a temporary restraining order against him. The judge cited violations of Emerson’s Second and Fifth Amendment rights, and rejected the Government lawyer’s claim that it was "well-settled" that the Second Amendment was only a collective right. This marks the first time in over 60 years that a federal judge has correctly interpreted the Second Amendment as a crucial individual right.
"This is one of the strongest rulings I have read regarding any of the Bill of Rights," proclaimed SAF founder Alan Gottlieb. "The overwhelming evidence proving the founding fathers’ intent is very meticulously researched and coherently laid out for all to see."
The case arises from a divorce proceeding began by Emerson’s wife. The presiding judge issued a temporary restraining order against Mr. Emerson prohibiting him from engaging in various financial transactions (such as emptying the joint accounts), or threatening harm to his wife or her live-in boyfriend. Mrs. Emerson claimed that Mr. Emerson had made a telephone death threat against her lover. The judge did not issue a finding that Mr. Emerson was a possible danger, nor did he warn Mr. Emerson that he faced possible federal felony prosecution if caught with a firearm (18 U.S.C. § 922(g)(8)) after the restraining order was activated.
Unaware of his prohibited status, Mr. Emerson was later found in possession of a firearm and indicted for this offense. Which brings us to his attempted prosecution in Judge Sam Cummings courtroom. Mr. Emerson moved to dismiss the charge as an unconstitutional exercise of congressional power under the Commerce Clause and the Second, Fifth, and Tenth Amendments to the United States Constitution. Judge Cummings agreed to dismiss on violations on Second and Fifth Amendment grounds.
The vast majority of the decision is a discussion of the real meaning of the Second Amendment. Judge Cummings begins by going through the two schools of thought, the "states’ rights" or "collective rights" theory versus the "individual rights" theory. He then enumerates in great detail why in individual right, now known as the "Standard Model" in academic literature, is the proper interpretation. Judge Cummings cites as his many reasons for supporting an individual right include:
1. Textual Analysis. The subordinate "Militia" clause, does not negate or limit the independent "the right of the people" clause. Furthermore, the U.S. Supreme Court has determined that "the people" should be interpreted similarly in the First, Second, Fourth, Fifth, and Ninth Amendments.
2. Historical Analysis. Judge Cummings found that an examination of (a) English History, (b) Colonial Right to Bear Arms, (c) The Ratification Debates, and (d) Drafting of the Second Amendment all show clearly that the right was meant as an individual protection. The Judge repeatedly cited relevant English and Colonial laws, quoted from numerous founding fathers, and provided a crucial history lesson on how, "Without that individual right [to bear arms], the colonists never could have won the Revolutionary War."
3. Structural Analysis. The structure of the Second Amendment within the Bill of Rights proves that the right to bear arms is an individual right, rather than a collective one. Of the first ten amendments to the Constitution, only the Tenth concerns itself with the states, and refers to such powers in addition to, not instead of, individual rights. The Tenth Amendment reads, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
4. Judicial Interpretations. Judge Cummings notes that the courts have been divided on this issue, and but that the U.S. Supreme Court has not had a true Second Amendment case since 1939.
5. Prudential Concerns. Judge Cummings also admonished people who are trying to eliminate the right to keep and bear arms just because that right is outdated, unpopular, or costly. Such "cost-benefit" analysis merely proves that the founding fathers were right in including it in the Bill of Rights.
Judge Cummings then utilized his skilled reasoning to conclude that the federal unlawful possession law (18 U.S.C. §922(g)(8)), "is unconstitutional because it allows a state court divorce proceeding, without particularized findings of the threat of future violence, to automatically deprive a citizen of his Second Amendment rights. The statute allows, but does not require, that the restraining order include a finding that the person under the order represents a credible threat to the physical safety of the intimate partner or child….Therefore, by criminalizing protected Second Amendment activity based upon a civil state court order with no particularized findings, the statute is over-broad and in direct violation of an individual's Second Amendment rights."
This common-sense decision is great news for gun owners.
"This decision helps protect gun owners from the ever-increasing classes of people prohibited from gun ownership," stated Gottlieb. "Without a court willing to step in and put a halt to this practice, eventually anyone with a parking or speeding ticket could be prevented from gun ownership!
"This could be the pure Second Amendment case that gun owners have been praying for over the last half-century. Judge Cummings has made a great argument on our behalf and the Clinton Administration must be livid. I promise that the Second Amendment Foundation will defend this decision if and when it is appealed."
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