Right to bear arms prevails over federal statute prohibiting gun possession
Kurt Sauer
Texas Lawyer
April 12, 1999
In a two-fisted defense of individual rights against the power of
the federal government, U.S. District Judge Sam R. Cummings of
Lubbock struck down as unconstitutional a federal criminal
provision in the Violent Crime Control and Law Enforcement Act of
1994, which prohibits the possession of a gun by persons subject
to certain family law court orders.
Cummings' March 30 opinion in United States v. Timothy Joe Emerson
declared that the statute, 18 U.S.C. &922(g)(8), violates the
Second Amendment because it allows a state court divorce
proceeding, without a finding of threatened future violence, to
deprive automatically a citizen of his right to keep and bear
arms.
If upheld by the 5th U.S. Circuit Court of Appeals, the case "is
very significant and could force the Supreme Court to confront the
issue of whether the Second Amendment" guarantees rights to
individuals or the states, says Professor Sanford V. Levinson of
the University of Texas School of Law.
Lubbock's William B. Mateja, the assistant U.S. attorney who
prosecuted the case, says a notice of appeal has been filed.
Cummings also found the statute unconstitutional under the Fifth
Amendment, reasoning that when a person is engaging in otherwise
lawful behavior, it is unfair to convict him of a crime that is
obscure and that he did not know existed.
The statute makes it a crime for a person to possess a gun if he
or she is subject to a court order that explicitly prohibits the
use or threatened use of physical force against a family member.
The statute is applicable only if a defendant had actual notice of
and an opportunity to participate in the hearing at which the
court order was issued.
According to Cummings' opinion, during the pre-trial hearing in
their divorce case, Sacha Emerson alleged that her husband,
Timothy, threatened over the telephone to kill the man with whom
she had been having an affair. Timothy attended the hearing
without an attorney. Cummings notes that there was no evidence of
violence or threatened violence by Timothy against Sacha or their
child, the state court made no findings to that effect and Timothy
received no warning that if the trial court granted the temporary
orders, he would be subject to federal criminal prosecution for
possessing a gun while subject to the temporary orders.
The trial court then entered temporary orders that contained
provisions enjoining Timothy from "causing bodily injury" to Sacha
or their child. Timothy was later indicted under &922(g)(8)
for possessing a firearm while subject to the temporary orders,
says Lubbock's David M. Guinn Jr., the assistant federal public
defender who represented Timothy Emerson.
FAMILY LAW CONCERNS
The opinion has important implications for Texas family law
practitioners whose clients own guns.
"There are probably thousands of temporary restraining orders
which contain language that may trigger the provisions of the
statute," says Brian L. Webb, a partner in Dallas' Webb &
Tilholiz and a former president of the Texas Academy of Family Law
Specialists and the Texas Chapter of the American Academy of
Matrimonial Lawyers.
"Many of the form books used by Texas family law practitioners
also contain this language. [The statute] may be something
we need to start paying more attention to," adds Webb.
Although the statute has not been widely used in Texas, this may
change.
"We have had one prosecution under this statute in the Western
District of Texas, but it's something we are notifying victims'
groups about and we will be pursuing it in the future," says
Michael McCrum, chief of the Major Crimes Section in the Office of
the U.S. Attorney in San Antonio.
According to Mateja, "Congress has said that this is an area of
concern that needs to be addressed by future prosecutors; it is
important for family law practitioners and judges to be familiar
with the statute and its impact in connection with domestic
disputes."
Mateja points out that in the Emerson case, "not only had the
defendant threatened numerous people, but according to police
reports his threats were manifested by him pulling a gun on his
estranged wife and daughter."
The police reports are dated after the temporary restraining order
was entered.
Denise Gamache, associate director of the Battered Women's Justice
Project, says that the statute was originally aimed at preventing
the escalation of violence.
"Most data on firearms shows that they heighten the lethality of
the situation," she says.
Bree Buchanan, public policy director for the Texas Council on
Family Violence, believes most family law practitioners will be
surprised to learn that the criminal penalties of &922(g)(8)
may apply to temporary restraining orders. Buchanan believes this
may not have been the intent of the provision's authors.
"The original intent seems to have been to apply the provision not
to temporary restraining orders . . . but to protective orders
enforceable by criminal contempt, such as those governed by
Chapter 85 of the Texas Family Code. In their attempt to write a
federal statute covering court orders in all 50 states, the
authors may have used language that is overbroad for Texas," says
Buchanan.
BATTLE OF RIGHTS
In concluding that the Second Amendment recognizes a personal
right to keep and bear arms, Cummings answered a question of first
impression within the 5th Circuit.
"As far as I know, this is the first time a federal court of any
kind has held that the Second Amendment creates a personal right
to keep and bear arms. It's a question the Supreme Court has not
answered," says Guinn. "Judge Cummings is saying that the right to
bear arms is a personal right just like the right to free speech
and the free exercise of religion."
Cummings acknowledged that four U.S. Circuit Courts have held that
the Second Amendment does not establish a personal right to keep
and bear arms; instead, these courts held that it establishes a
"collective" right - a right held by the states.
"One would expect the 5th Circuit to be willing to assert some
innovation in this issue," says Levinson, whose work is cited in
the opinion.
Some say that Cummings' opinion is simply an acknowledgement that
the Second Amendment has long recognized a personal right to keep
and bear arms.
Bob Dowlett, general counsel for the National Rifle Association,
believes the Circuit Court opinions holding otherwise are "flat
wrong. The Supreme Court has said the Second Amendment creates
individual rights ever since the Dred Scott v. Sanford
decision."
IGNORANCE OF THE LAW
Cummings' 5th Amendment due process analysis centered on the issue
of when ignorance of the law is an excuse.
Citing Chief Justice Richard A. Posner of the 7th U.S. Circuit
Court of Appeals - "We want people to familiarize themselves with
the laws bearing on their activities. But a reasonable opportunity
doesn't mean being able to go to a local law library and read
Title 18" - Cummings concluded that because &922(g)(8) "is an
obscure, highly technical statute with no mens rea requirement, it
violates Emerson's 5th Amendment due process rights to be subject
to prosecution without proof of knowledge that he was violating
the statute."
Levinson says the due process issue "could be much more explosive"
than the Second Amendment issue if addressed by the 5th
Circuit.
A LIMIT TO REGULATION OF FIREARM POSSESSION
Editor's note: U.S. District Judge Sam R. Cummings' opinion in
United States v. Timothy Joe Emerson contains a 12-page historical
analysis of the right to keep and bear arms, beginning in 690 A.D.
when Englishmen were required to possess arms and serve in the
military, and ending in the debates among Patrick Henry, James
Madison, Thomas Jefferson and Samuel Adams during the ratification
of the U.S. Constitution and the drafting of the Bill of Rights.
What follows are excerpts from the opinion, edited for length and
style:
. . . [W]hat it means to take rights seriously is that one
will honor them even when there is significant social cost in
doing so. Protecting freedom of speech, the rights of criminal
defendants or any other part of the Bill of Rights has significant
costs - criminals going free, oppressed groups having to hear
viciously racist speech and so on - consequences we take for
granted in defending the Bill of Rights. This mind-set changes,
however, when the Second Amendment is concerned. "Cost-benefit"
analysis, rightly or wrongly, has become viewed as a
"conservative" weapon to attack liberal rights. Yet the tables are
strikingly turned when the Second Amendment comes into play. Here
"conservatives" argue in effect that social costs are irrelevant
and "liberals" argue for a notion of the "living Constitution" and
"changed circumstances" that would have the practical consequence
of erasing the Second Amendment from the Constitution.
It is absurd that a boilerplate state court divorce order can
collaterally and automatically extinguish a law-abiding citizen's
Second Amendment rights, particularly when neither the judge
issuing the order, nor the parties nor their attorneys are aware
of the federal criminal penalties arising from firearm possession
after entry of the restraining order. That such a routine civil
order has such extensive consequences totally attenuated from
divorce proceedings makes the statute unconstitutional. There must
be a limit to government regulation on lawful firearm possession.
This statute exceeds that limit, and therefore it is
unconstitutional.
It is wrong to convict a person of a crime if he had no reason to
believe that the act for which he was convicted was a crime, or
even that it was wrongful. This is one of the bedrock principles
of American law. It lies at the heart of any civilized system of
law. . . .
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