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Blockbuster Victory for the Second Amendment


Last April, federal judge Sam Cummings issued a decision that chilled the hearts of gun grabbers across the nation. Cummings struck down as unconstitutional a provision in a 1994 law that routinely turned husbands and others targeted by domestic restraining orders into felons. The Clinton administration is appealing the decision — and this could be a great test case for the Supreme Court to finally resolve one of the areas of fiercest dispute about the Bill of Rights.

Timothy Joe Emerson, a Texas doctor, was placed under a domestic restraining order last September after his wife claimed he had threatened violence against the man with whom she was having an adulterous affair (not an unusual response for a Texas husband). Emerson had made no threats of violence against his wife or their child; the court did no investigation but simply slapped on the restraint. Yet because of a little-known provision in the 1994 Clinton crime bill, Emerson suddenly became classified as a dangerous felon. The 1994 act decreed that no person under a domestic restraining order can possess firearms. However, neither the county judge nor the local lawyers involved in the case were aware of the federal provision.

Emerson found out about the law when federal prosecutors indicted him, seeking a five-year prison sentence because he was still in possession of a handgun. Judge Cummings saw this as a violation of due process, since Emerson was not forewarned about any duty to sell, give away, or surrender his guns.

In many states, domestic restraint orders are issued practically automatically — simply another boilerplate part of divorce proceedings. As Cummings noted, thanks to the 1994 federal law “a person can lose his Second Amendment rights not because he has committed some wrong in the past, or because a judge finds he may commit some crime in the future, but merely because he is in a divorce proceeding.”

The law was struck down because most citizens — even most judges and lawyers — had no idea that Congress had criminalized this specific private behavior. The decision noted, “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.” Cummings noted that the provision of the 1994 law “has no real safeguards against an arbitrary abridgement of Second Amendment rights.”

It is refreshing to see a judge who recognizes the danger of arbitrary power — of the types of selective prosecutions so beloved by federal attorneys who want to raise their profile and eventually run for Congress or other political office.

Naturally, the rebuke seems to have had little effect on government employees eager to use any pretext to convict more private citizens. Prior to the Cummings decision, this provision of the 1994 crime act had seen little use in Texas. However, apparently because of the publicity surrounding this case, more prosecutions will occur — even though the provision was found to be unconstitutional by a federal district judge. “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,” Michael McCrum, chief of the major crimes section in the office of the U.S. Attorney in San Antonio, told Texas Lawyer magazine.

Judge Cummings’s decision explained the historical origins of the Second Amendment. “The individual right to bear arms, a right recognized in both England and the colonies, was a crucial factor in the colonists’ victory over the British Army in the Revolutionary War,” he noted. If Americans in the founding generation had been as fearful of firearms as many contemporary liberals are, this country might still be kowtowing to a foreign king. And Cummings did not shy away from recognizing that the Second Amendment was also enacted as a curb on abusive government: “A foundation of American political thought during the Revolutionary period was the well-justified concern about political corruption and governmental tyranny.” Cummings quoted George Mason’s warning that England’s efforts “to disarm the people … was the best and most effectual way to enslave them.” Patrick Henry warned that “downright force” in the hands of private citizens was the most certain protection for “public liberty.” Henry concluded, “Whenever you give up that [private] force, you are ruined.” James Madison sneered at European despots who were “afraid to trust the people with arms.” As John Locke wrote a hundred years before the U.S. Constitution was written, “Men can never be secure from tyranny, if there be no means to escape it till they are perfectly under it.” In the same way that any citizen has a right to defend himself against a mugger or a murderer, so citizens in general have a right to defend themselves against violent political predators. Cummings noted, “The framers thought the personal right to bear arms to be a paramount right by which other rights could be protected.”

Discussions on federal gun-control measures often focus on whether specific guns serve “sporting purposes.” However, if the Founding Fathers had added a clause to the Second Amendment specifying that people will be “permitted to own guns for hunting rabbits,” the Constitution would have been overwhelmingly rejected, as Americans would have been alerted to how far politicians intended to stretch their power. Unfortunately, anyone who mentions in public that citizens may need to defend themselves against a government gone bad is routinely treated as the moral equivalent of a truck bomber — someone ready to wreak ruin upon innocent women and children. The mere thought of resistance to government is sufficient to convince some people that government needs more power to repress citizens.

The judge’s honesty about the Second Amendment’s purpose is in sharp contrast to the craven attitude shown by many academics. At a 1997 American Society of Criminology conference, one professor argued that among signs of “hate group ideology” were “discussion of the Bill of Rights, especially the Second Amendment, or the Federalist Papers,” “discussion of military oppression, in the U.S. or elsewhere,” and “discussion of the Framers of our government.” Bentley College professor Joyce Lee Malcolm, who attended the conference session, observed that the professor “was anxious to have militia classified as hate groups because then federal legislation on hate groups would apply to them.” Malcolm was surprised that the proposed expansive definition of hate groups elicited no objections from the scholarly audience.

If Cummings’s decision is upheld, then other federal gun control laws will also very likely be struck down. For instance, the so-called Lautenberg Domestic Violence Prevention Act of 1996 made it a felony, punishable by 10 years in prison and a $250,000 fine, for anyone who has ever been convicted of a misdemeanor of domestic use or attempted use of force against a spouse or child to possess a firearm or a single bullet. (Some states consider even verbal threats to be a “domestic assault.”) Experts estimated that the law created one million new felons overnight, in part because few people are aware of the bill’s retroactive sweep.

This federal court decision goes to the heart of “the crucial question of whether the Second Amendment embodies an individual or collective right to bear arms,” as Cummings wrote. Several federal appeals courts have ruled that the right is only a “collective” right — in sharp contrast to the other rights protected by the Bill of Rights. But, as Cummings concluded, “the rights of the Second Amendment should be as zealously guarded as the other individual liberties enshrined in the Bill of Rights.” It is to be hoped his decision will be read far and wide — and perhaps may even knock some sense into a few congressmen.

It will be amusing to watch the contortions of the Clinton administration and other anti-gun advocates as they fight this decision. Cummings has given the defenders of freedom lofty high ground on which to take a stand. The future of this case could be a bellwether on whether Leviathan can be leashed.

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    James Bovard is a policy adviser to The Future of Freedom Foundation. He is a USA Today columnist and has written for The New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader’s Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of Freedom Frauds: Hard Lessons in American Liberty (2017, published by FFF); Public Policy Hooligan (2012); Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book’s Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.