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Atty. Ralph D. Sherman

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Second Amendment case threatens "house of cards"

"Op-ed" article

published in The Waterbury Republican-American

April 11, 1999

by Ralph D. Sherman

An otherwise ordinary divorce has led to the first federal case in 60 years in which a law has been held unconstitutional because it violates the Second Amendment.

If federal prosecutors - who lost the criminal case in February - appeal to the U.S. Supreme Court, the result could be the collapse of the house of cards that has pretended to be federal case law on the Second Amendment since 1939.

It was in 1939 that the U.S. Supreme Court last ruled directly on the Second Amendment. Beginning three years later, lower federal courts began issuing decisions that twisted the Supreme Court's 1939 ruling every possible way to try to strip the Second Amendment of all meaning. These lower-court decisions have held that the Second Amendment does not guarantee a right to individual citizens but instead allows the National Guard to keep and carry firearms.

Sadly these decisions have been based not on law or history but on certain judges' inability to stomach the correct conclusion: that individuals have the right to keep and bear arms.

But a few weeks ago a federal judge in Texas reviewed the history of the Second Amendment, the case law, and the wealth of legal scholarship pertaining to the right to keep and bear arms. He concluded that the right belongs to every individual citizen and may not be taken away lightly. (The decision may be downloaded from this site.)

The law at issue in the Texas case, United States v. Emerson, is a recently enacted federal statute. It says that anyone who is subject to a restraining order that prohibits him from threatening or harassing a spouse or "intimate partner" is also prohibited, by this statute, from possessing any firearm.

In this case, Mr. Emerson's wife filed for divorce and requested a restraining order against her husband. The order was granted, and Mr. Emerson was caught in possession of a firearm (which he possessed for some time before the order was issued).

While restraining orders may seem like a good idea, the truth is they are often issued in divorce cases with little regard for the facts of the situation. Some judges apparently believe that at worst, to issue a restraining order would be to err on the safe side. Many divorce attorneys now advise a wife to request a restraining order as leverage against the husband, because the order will force the husband to give up his property (his firearms). The result is that restraining orders are issued on the basis of exaggerated or false accusations.

Indeed, in the Emerson case, no evidence was presented that Mr. Emerson had threatened his wife; the judge in the divorce case issued the restraining order without making any finding that threats were ever made.

Mr. Emerson's defense attorney argued that the federal statute is unconstitutional because it violates the Second Amendment. The oft-misunderstood amendment says: "A well regulated militia, being necessary to the security of free state, the right of the people to keep and bear arms shall not be infringed."

The prosecution in the Emerson case, arguing against the constitutional challenge, cited the fact that other federal judges have held that the Second Amendment guarantees a right to the states, on the basis that the militia today is the National Guard.

That argument seduces many people who try to read the Second Amendment without historical context. As noted by Judge Cummings in the Emerson case, however, the word "militia" was used by the framers of the Constitution to mean all citizens, bearing their personal firearms.

After 30 years of King George's soldiers occupying Boston, Lexington, and Concord, the framers made clear (in their own writings about the Constitution) that they believed a uniformed, standing army would always become a tool of oppression. An armed citizenry was fundamental to freedom, because if the federal government ever tried to raise a standing army to oppress the people, such an army could never subdue "a nation of freemen, who know how to prize liberty, and who have arms in their hands," as one Massachusetts thinker put it.

The Supreme Court, in its 1939 decision, also observed that the framers believed "the militia comprised all males physically capable of acting in concert for the common defense." When called for service, "these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

Judge Cummings, in the Emerson case, went on to discuss the obvious yet overlooked fact that the term "the people" appears in the First, Fourth, and Ninth Amendments - all of which guarantee rights to individual citizens, not to state governments or the National Guard. It would be absurd, for example, to assert that purpose of the First Amendment is to guarantee state governments the right of free speech or freedom of religion. The same point was noted by the U.S. Supreme Court in 1990 in a case that did not directly involve the Second Amendment.

The "National Guard" argument is also absurd because the National Guard is in fact mobilized under federal control. In the past decade alone, the Guard has been ordered by the president to represent the U.S. government in the Persian Gulf, Haiti, Somalia, and Kosovo. Today the distinction between the National Guard and the federal government is minimal; the framers surely did not intend the Bill of Rights to guarantee that the federal government had a right to bear arms.

In the Emerson case, the next move is the prosecution's; it's up to the losing side to decide whether to appeal. Many observers who agree with Judge Cummings expect his decision will upheld by the Supreme Court. That's exactly why appeal is risky for the prosecution and for anyone who supports the government's "right" to disarm law-abiding citizens. Without an appeal, and without a Supreme Court ruling to rectify 60 years of ill-founded decisions, the house of cards will stand a while longer.


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