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Second Amendment Gets its Day in Court >Page 1, 2

In the doctor's defense
Dr. Emerson's lawyers immediately fired up a defense claiming that provisions of 18 U.S.C. § 922(g)(8), the law under which Emerson had been indicted, violated the Commerce Clause, plus the Second, Fifth, and Tenth Amendments of the Constitution.

On April 7, 1999, U.S. District Court Judge Sam R. Cummings rule that while 18 U.S.C. § 922(g)(8) met the constitutional muster of the Commerce Clause and Tenth Amendment, it did violate the Fifth Amendment and, to the amazement of many legal scholars, the Second Amendment.

What about U.S. v. Miller?
In their presentation before Judge Cummings, government attorneys had argued as a "well settled" fact that the Second Amendment
creates a right held by the States rather than an individual's right to bear arms. "Well settled," in the government's opinion, by the 1939 Supreme Court decision in the case of U.S. v. Miller. (Also see: Gun laws: What gives Congress the right?)

But, to U.S. v. Miller, Judge Cummings writes, "Miller did not answer the crucial question of whether the Second Amendment embodies an individual or collective right to bear arms. Although its holding has been used to justify many previous lower federal court rulings circumscribing Second Amendment rights, the Court in Miller simply chose a very narrow way to rule on the issue of gun possession under the Second Amendment, and left for another day further questions of Second Amendment construction."

Judge Cummings concludes his passage on the Second Amendment, "Thus, concerns about the social costs of enforcing the Second Amendment must be outweighed by considering the lengths to which the federal courts have gone to uphold other rights in the Constitution. The rights of the Second Amendment should be as zealously guarded as the other individual liberties enshrined in the Bill of Rights."

What was different this time?
Why did Dr. Emerson win this round? Mainly because his lawyers even bothered to argue the Second Amendment. Most criminal defense lawyers take one look at the Supreme Courts decision in U.S. v. Miller and simply give up on the Second Amendment as a line of defense. Not even the NRA has dared to send its lawyers to challenge U.S. v. Miller.

However, in past decisions, District Judge Cummings had applied strict and literal interpretations of the Constitution and demonstrated his belief that all of the Bill of Rights bestow their rights on the individual, not the state. In short, Dr. Emerson's lawyers had done their homework well.

What is the future of this case?
Under Judge Cummings' ruling, the federal gun law violation indictment against Dr. Emerson was dismissed. The U.S. government has appealed the dismissal to the
5th Circuit Court of Appeals.

The government's appeal to the dismissal of the federal case against Dr. Emerson is now being considered by a three-judge panel of the 5th Circuit Court of Appeals. The decision of this panel must then be considered by the full Court of Appeals.

If the Appeals Court upholds Judge Cummings' ruling that the Second Amendment speaks to the rights of individuals, and striking down 18 U.S.C. § 922(g)(8), the government will certainly appeal the decision to the Supreme Court. If the Appeals Court overturns Judge Cummings, the Dr. Emerson will appeal. Either way, there is a very good chance the Second Amendment will make a major appearance before the Supreme Court.

And, what would happen in the Supreme Court? There is nothing to indicate the they would suddenly reverse 61 years of history and rule that the Second Amendment applies to individuals rather than to the state militias only. 

But, what if they did? In The second amendment in court, Civil Liberties Guide J.D. Tuccille suggests that such a ruling would "likely spark a move to repeal the Second Amendment,"  by gun control supporters.

Don't worry, J.D., circumstances that might ever lead to the repeal of any of the Bill of Rights are beyond imagination  Yet, more people may be watching for the upcoming decisions in U.S. v. Emerson, than in the O.J. Simpson case. Well, almost as many.

Reference Links

United States v. Emerson
Download the full citation in .pdf format (Requires free Adobe Acrobat reader.)

Texas case could affect gun ownership
Report on this case from USA Today

Roundup on United States v. Emerson
From the Second Amendment Foundation - a group dedicated to protecting the 2nd Amendment as protecting the rights of individuals.

The Second Amendment in Court
Civil Liberties Guide J.D. Tuccille looks at U.S. v. Emerson from a decidedly anti-gun control point of view.

Restoring the Second Amendment
Has the 2nd Amendment been damaged? Civil Liberties Guide J.D. Tuccille says it has and tells you how to fix it.

Gun Laws: What Gives Congress the Right?
Read about U.S v. Miller, the last Supreme Court case to interpret the Constitution. From your About.com Guide.

Gore & Bush Agreeing on Guns?
Where the candidates stand. From US Politics Guide John Aravosis.

Gun Control Lawsuits Take a Hit, Score
A round-up of all the law suits by cities against gun makers, gun makers against cities, the government against gun makers... oh, brother. From Current Events: Law Guide Paul S. Reed.

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