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7
Federal Corner
AND CHARLTON HESTON SAID,
"I TOLD YOU SO."
0
n
April 7,1999, United States District
Judge Sam R. Cummings, sitting
in the San Angelo Division
of the Northern District of Texas, signed an
Amended Memorandum Opinion holding
that 18 U.S.C. § 922 (g)(8) violates the
Second and Fifth Amendments to the
United States Constitution and dismissing
the indictment in a case styledunited States
of America v. Timothy Joe Emerson.
In December, a poll showed that significantly
more Americans believed in the
existence of Santa Claus than in the
viability of the Second Amendment. Only
that great constitutional scholar
Charlton Heston could have predicted
Judge Cummings' decision
The facts in the case start out plain
vanilla: Emerson was a doctor whose wife
filed a petition for divorce and an application
for a temporary remaining order in the
119th District Court of Tom Green County.
The application for the TRO sought to
enjoin Emerson "...from making tbreatening
communications or actual attacks upon
his wife during the pendency of the divorce
proceedings." Ar a hearing on the TRO,
Mrs. Emerson was represented by an attorney.
Emerson - like Dr. Kervorkian -
appeared pro se.
In his opinion, Judge Cummingssets out
what then transpired in the Texas district
court proceeding: "Mrs. Emerson alleged
that her husband threatened over the
telephone to kill the man with whom Mrs.
Emerson had been having an adulterous
affair. However, no evidence was adduced
concerningaq acts of violence or threatened
violence by Mr. Emerson against any
member of his family, and the district court
made no findin& to that effect. Furthermore,
the court did not admonish Mr.
Emerson that if'he granted the temporary
restraining order, Mr, Emerson would be
subject to federal criminal prosecution
merely for possessing a firearm while being
subject to the order".
After injunction was entered against
Dr. Emerson, his wife came to his office -
ER. (Buck) Files, Jr.
unannounced - with then daughter and
things became unpleasant. At some time,
Dr. Emerson displayed a pistol. Prior tc the
entry of the resuainmg order, Emerson had
pawned four firearms. After the injunction
was entered, he made payments on these
weapons in order that he would not lose his
interest in them; however, he never
redeemed themorhad them inhis possession.
Subsequently, a five-count indictment
was returned agamst Dr. Emerson w~th each
count pleading a vtolation of 18 U.S.C. B
922 (g)(8). TCDLA Board member David
Guinn of Lubbodt, Teuas, represented Dr.
Emerson and filed a motion to dismiss
alleging that the statute was an unconstitutional
exercise of congressional power
under the Commerce Clause and the
Second, Fifth, and Tenth Amendments to
*the United States Constitution. Judge
Cummings found no basis for the Commerce
Clause or Tenth Amendment arguments but
agreed with Mr. Guinn on his Second and
Fifth Amendment complaints.
The Amended Memorandum Oplnion is
33 pages inlength and cannot be adequately
covered in thts column; however, these are
the highlights:
Conclusions under the Second
Amendment
Judge Cummtngs began by recognizing
that Emerson could only prevail if the Second
Amendment guarantees him a personal nght
to bear arms and acknowledged that this
IS an issue of first tmpressmn in the Fifth
Circuit. He then contmues:
"18 US C. § 922 (g)(8) e unconstituttonal
because it allows a state court divorce
proceedmg, without part~cularlzed findings
of the threat of future violence, to automattcally
deprive a cittzen of his Second
Amendment nghts.
"If the statute only crim~nalized gun
oossess~on based uoon court orders with
particularized find& of the hkelihood of
violence, then the statute would not be so
offensive, because there would be a reasonable
nexus between gun possession and the
threat of vtolence. However, the statute is
infirm because it allows one to be subject to
federal felony prosecutm dthe order merely
'prohibits the use, ittempted use, or threatened
use of physical force against [an]
inttmate partner.' 18 U.S.C. $922 (g)
(8)(c)(n).
am
"It is absurd that a boilerplate state court
dtvorce order can collaterally and autcmatically
extingutsh a law-abiding citizen's
Second Amendment rights,
when neither the judge issuing the order,
nor the parties nor their attorneys are aware
of the federal crirmnal penalties arising from
fmarm possession after entry of the restraining
order. That such a rounne 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
fuearm possession. This statute exceeds that
limit, and therefore a is unconsututional."
MAY 1999 VOICE 19