Second Amendment Debated in Texas
The Associated Press
Tuesday, September 7 1999 01:43 PM EDT
LUBBOCK, Texas (AP) - A judge's landmark ruling that the Second Amendment
gives individuals, and not just militias, the right to bear arms has
touched off a furious debate among constitutional scholars that could go
all the way to the Supreme Court.
The debate began unfolding after Dr. Timothy Joe Emerson of San Angelo
was arrested and accused of brandishing a handgun in front of his wife
and her daughter. He was charged with violating a 1994 federal law that
prohibits someone under a restraining order from owning a gun.
U.S. District Judge Sam Cummings dismissed the charges in April,
declaring the law unconstitutional based on a ``historical examination of
the right to bear arms, from English antecedents to the drafting of the
Second Amendment.''
Cummings said the right to bear arms is a protected individual right -
and not just a right belonging to a militia, as federal prosecutors had
argued.
It is believed to the first decision in which a judge specifically called
a law unconstitutional because it infringed on an individual's Second
Amendment rights. The law was part of the Violence Against Women Act.
Before the ruling came down, gun-control opponents inundated the judge
with scholarly treatises encouraging him to strike down the law.
Last week, 52 legal scholars who support gun control filed a brief
denouncing Cummings' interpretation of the Second Amendment, which reads:
``A well-regulated militia, being necessary to the security of a free
state, the right of the people to keep and bear arms, shall not be
infringed.''
``That decision and the opinion were a major shot across the bow,'' said
Bruce Hay, a Harvard law professor who signed the brief. ``For the most
part, federal courts have taken a hands-off approach to federal statutes
regulating use of guns. This is the first decision to say the Second
Amendment prohibits Congress from imposing special laws concerning gun
ownership. That is why his decision is so worrisome.''
Scholars say the decision sets the stage for the challenge of almost any
law abridging an individual's right to possess a gun.
Prosecutors are appealing to the 5th U.S. Circuit Court of Appeals.
The judge ``glossed over case law and relied primarily on historical
analysis, and it's important for courts to follow the decisions made by
courts before them,'' Assistant U.S. Attorney Bill Mateja said.
The stakes are high.
``Growing public sentiment for a final decision on the issue is high
because of school shootings and office shootings,'' said David Yassky, a
Brooklyn Law School professor who wrote the brief. ``The time is right
for a serious decision to be made.''
The brief accuses the judge of misinterpreting the Second Amendment,
which Yassky writes was meant to ``preserve organized, state-based
militias,'' and not intended to ``empower individuals or small groups of
disaffected citizens to take up arms against the established order.''
Yassky said the vast majority of legal scholars believe the Second
Amendment was intended to protect states' militias from the new central
government created by the Constitution.
Scott Powe, a constitutional law professor at the University of Texas,
disputed Yassky's position, and charged that only three of the co-signers
of the brief were ``serious'' constitutional law scholars.
``The brief is seeking to suck the meaning out of the words `the right of
the people to keep and bear arms shall not be infringed,''' Powe said.
``The meaning is clear. It couldn't be more clear.''
Jim Manown, a spokesman for the National Rifle Association, said most
Americans support the ``traditional understanding'' of the Second
Amendment as guaranteeing the individual's right to bear arms.
``The road to the Supreme Court is a long one, but the interest this has
generated and the fact that it is being appealed will only mean the
importance of this case will be heightened,'' Manown said.
Nancy Hwa, a spokeswoman for the Center to Prevent Handgun Violence,
denounced the judge's ruling as ``a renegade decision that the gun lobby
is trying to hide behind.''
``But this time, the gun lobby won't be able to hide. Scholars are
stepping forward to make sure the reality of the Second Amendment is
clear,'' she said.
One expert who does not fit easily into either camp is Laurence Tribe,
the liberal Harvard law professor.
Tribe's recently published text, ``American Constitutional Law,''
concludes that the Second Amendment assures that ``the federal government
may not disarm individual citizens without some unusually strong
justification.'' His position has provoked gun-control advocates, and he
says he has received ``an avalanche of angry mail from apparent
liberals.''
But he said he also does not agree with Cummings' ruling.
``Judge Cummings went too far with his decision, saying that Congress
cannot define categories of people to whom it would be dangerous to allow
to bear arms,'' he said. ``The Second Amendment provides individual
right, but not an unbounded right.''
.............sounds to me like tribe has realized exactly what the 2nd means and is manuevring for a position which allows some governmental restrictions......here is why the supreme ct is so important to me, not parties the supreme ct....fubsy.
The Associated Press
Tuesday, September 7 1999 01:43 PM EDT
LUBBOCK, Texas (AP) - A judge's landmark ruling that the Second Amendment
gives individuals, and not just militias, the right to bear arms has
touched off a furious debate among constitutional scholars that could go
all the way to the Supreme Court.
The debate began unfolding after Dr. Timothy Joe Emerson of San Angelo
was arrested and accused of brandishing a handgun in front of his wife
and her daughter. He was charged with violating a 1994 federal law that
prohibits someone under a restraining order from owning a gun.
U.S. District Judge Sam Cummings dismissed the charges in April,
declaring the law unconstitutional based on a ``historical examination of
the right to bear arms, from English antecedents to the drafting of the
Second Amendment.''
Cummings said the right to bear arms is a protected individual right -
and not just a right belonging to a militia, as federal prosecutors had
argued.
It is believed to the first decision in which a judge specifically called
a law unconstitutional because it infringed on an individual's Second
Amendment rights. The law was part of the Violence Against Women Act.
Before the ruling came down, gun-control opponents inundated the judge
with scholarly treatises encouraging him to strike down the law.
Last week, 52 legal scholars who support gun control filed a brief
denouncing Cummings' interpretation of the Second Amendment, which reads:
``A well-regulated militia, being necessary to the security of a free
state, the right of the people to keep and bear arms, shall not be
infringed.''
``That decision and the opinion were a major shot across the bow,'' said
Bruce Hay, a Harvard law professor who signed the brief. ``For the most
part, federal courts have taken a hands-off approach to federal statutes
regulating use of guns. This is the first decision to say the Second
Amendment prohibits Congress from imposing special laws concerning gun
ownership. That is why his decision is so worrisome.''
Scholars say the decision sets the stage for the challenge of almost any
law abridging an individual's right to possess a gun.
Prosecutors are appealing to the 5th U.S. Circuit Court of Appeals.
The judge ``glossed over case law and relied primarily on historical
analysis, and it's important for courts to follow the decisions made by
courts before them,'' Assistant U.S. Attorney Bill Mateja said.
The stakes are high.
``Growing public sentiment for a final decision on the issue is high
because of school shootings and office shootings,'' said David Yassky, a
Brooklyn Law School professor who wrote the brief. ``The time is right
for a serious decision to be made.''
The brief accuses the judge of misinterpreting the Second Amendment,
which Yassky writes was meant to ``preserve organized, state-based
militias,'' and not intended to ``empower individuals or small groups of
disaffected citizens to take up arms against the established order.''
Yassky said the vast majority of legal scholars believe the Second
Amendment was intended to protect states' militias from the new central
government created by the Constitution.
Scott Powe, a constitutional law professor at the University of Texas,
disputed Yassky's position, and charged that only three of the co-signers
of the brief were ``serious'' constitutional law scholars.
``The brief is seeking to suck the meaning out of the words `the right of
the people to keep and bear arms shall not be infringed,''' Powe said.
``The meaning is clear. It couldn't be more clear.''
Jim Manown, a spokesman for the National Rifle Association, said most
Americans support the ``traditional understanding'' of the Second
Amendment as guaranteeing the individual's right to bear arms.
``The road to the Supreme Court is a long one, but the interest this has
generated and the fact that it is being appealed will only mean the
importance of this case will be heightened,'' Manown said.
Nancy Hwa, a spokeswoman for the Center to Prevent Handgun Violence,
denounced the judge's ruling as ``a renegade decision that the gun lobby
is trying to hide behind.''
``But this time, the gun lobby won't be able to hide. Scholars are
stepping forward to make sure the reality of the Second Amendment is
clear,'' she said.
One expert who does not fit easily into either camp is Laurence Tribe,
the liberal Harvard law professor.
Tribe's recently published text, ``American Constitutional Law,''
concludes that the Second Amendment assures that ``the federal government
may not disarm individual citizens without some unusually strong
justification.'' His position has provoked gun-control advocates, and he
says he has received ``an avalanche of angry mail from apparent
liberals.''
But he said he also does not agree with Cummings' ruling.
``Judge Cummings went too far with his decision, saying that Congress
cannot define categories of people to whom it would be dangerous to allow
to bear arms,'' he said. ``The Second Amendment provides individual
right, but not an unbounded right.''
.............sounds to me like tribe has realized exactly what the 2nd means and is manuevring for a position which allows some governmental restrictions......here is why the supreme ct is so important to me, not parties the supreme ct....fubsy.