April 02, 1999, 08:48 p.m.
Ruling could open up attack on gun
control
By CHRIS NEWTON
Associated Press
LUBBOCK -- A federal judge's ruling striking down a
gun-ownership law could be precedent-setting, laying the
groundwork for challenges to other gun control laws, legal
experts said Friday.
Federal Judge Sam Cummings dismissed charges this week
against a man accused of breaking an arcane federal law that
prohibits gun ownership by someone under a restraining
order -- most often in a contested divorce.
"If appealed, this could be the springboard for a definitive
Supreme Court ruling on the Second Amendment," said
Stephen Holbrook, an author and attorney who represented
sheriffs in a successful challenge to provisions of the federal
Brady gun-control law.
In a 32-page opinion, Cummings ruled that the man's
Second Amendment right to bear arms is a protected
individual right -- and not just a right belonging to an
organized militia, as federal prosecutors contended.
"A historical examination of the right to bear arms, from
English antecedents to the drafting of the Second
Amendment, bears proof that the right to bear arms has
consistently been, and should still be, construed as an
individual right," Cummings wrote.
Holbrook said the case clearly puts a limit on the
government's power to restrict firearms.
Cummings' legal interpretation, if it survives an upcoming
appeal by government lawyers, could be used to attack state
and federal laws such as those in Denver, where it is illegal
to carry a firearm in a vehicle to any place other than a firing
range.
The case revolves around Timothy Joe Emerson, a family
doctor in San Angelo who had been indicted in federal court
on five counts of violating a restraining order after
brandishing a handgun in front of his wife and her daughter.
Emerson was arrested last year by agents from the U.S.
Bureau of Alcohol, Tobacco and Firearms and the Texas
Department of Public Safety.
The first count of the indictment dealt with the alleged
brandishing of the pistol, according to U.S. Assistant
Attorney Bill Mateja.
The remaining four counts were lodged after Emerson later
pawned two .308-caliber rifles, a .30-06-caliber rifle and a
9 mm pistol -- indicating that Emerson owned more
firearms, Mateja said.
But defense attorneys argued that Emerson has a right to
own guns under the Second Amendment and that any law
infringing upon that is unconstitutional.
Activists on both sides of the issue agreed that the decision
could be the first case in which a judge specifically called an
existing law unconstitutional because it infringed on an
individual's Second Amendment rights.
"This has monumental potential," said former Texas Sen.
Jerry Patterson, who authored the law that allows Texans to
carry concealed handguns. "If federal prosecutors proceed
with an appeal, this could be the case that the court uses to
directly rule on the issue."
Ruling could open up attack on gun
control
By CHRIS NEWTON
Associated Press
LUBBOCK -- A federal judge's ruling striking down a
gun-ownership law could be precedent-setting, laying the
groundwork for challenges to other gun control laws, legal
experts said Friday.
Federal Judge Sam Cummings dismissed charges this week
against a man accused of breaking an arcane federal law that
prohibits gun ownership by someone under a restraining
order -- most often in a contested divorce.
"If appealed, this could be the springboard for a definitive
Supreme Court ruling on the Second Amendment," said
Stephen Holbrook, an author and attorney who represented
sheriffs in a successful challenge to provisions of the federal
Brady gun-control law.
In a 32-page opinion, Cummings ruled that the man's
Second Amendment right to bear arms is a protected
individual right -- and not just a right belonging to an
organized militia, as federal prosecutors contended.
"A historical examination of the right to bear arms, from
English antecedents to the drafting of the Second
Amendment, bears proof that the right to bear arms has
consistently been, and should still be, construed as an
individual right," Cummings wrote.
Holbrook said the case clearly puts a limit on the
government's power to restrict firearms.
Cummings' legal interpretation, if it survives an upcoming
appeal by government lawyers, could be used to attack state
and federal laws such as those in Denver, where it is illegal
to carry a firearm in a vehicle to any place other than a firing
range.
The case revolves around Timothy Joe Emerson, a family
doctor in San Angelo who had been indicted in federal court
on five counts of violating a restraining order after
brandishing a handgun in front of his wife and her daughter.
Emerson was arrested last year by agents from the U.S.
Bureau of Alcohol, Tobacco and Firearms and the Texas
Department of Public Safety.
The first count of the indictment dealt with the alleged
brandishing of the pistol, according to U.S. Assistant
Attorney Bill Mateja.
The remaining four counts were lodged after Emerson later
pawned two .308-caliber rifles, a .30-06-caliber rifle and a
9 mm pistol -- indicating that Emerson owned more
firearms, Mateja said.
But defense attorneys argued that Emerson has a right to
own guns under the Second Amendment and that any law
infringing upon that is unconstitutional.
Activists on both sides of the issue agreed that the decision
could be the first case in which a judge specifically called an
existing law unconstitutional because it infringed on an
individual's Second Amendment rights.
"This has monumental potential," said former Texas Sen.
Jerry Patterson, who authored the law that allows Texans to
carry concealed handguns. "If federal prosecutors proceed
with an appeal, this could be the case that the court uses to
directly rule on the issue."