May 01, 1999
A remarkable decision by Judge Sam Cummings may have set the stage for significant developments in Second Amendment law. In United States v. Emerson, 1999 WL 181663 (N.D. Tex., March 30, 1999), the court considered a federal statute that forbids the possession of firearms by persons who are subject to a restraining order that forbids actual or threatened use of force against an "intimate partner or child." The court held that the ban on possessing a gun neither requires (1) a finding that the person subject to the restraining order posed a threat to an intimate partner or child; nor (2) that the person subject to the order be notified of the disability it imposes on him under federal law. The court held that as so interpreted, the statute violates both the Second Amendment and Fifth Amendment due process.
Judge Cummings' opinion is much better reasoned than most Second Amendment decisions, and the Fifth Circuit is probably less hostile to the right to keep and bear arms than any other court of appeals. The federal courts have never struck down any statute under the Second Amendment, and the Supreme Court has not taken a Second Amendment case since 1939. Emerson could therefore lead either to a major advance or a major setback for the right that Justice Story called "the palladium of the liberties of a republic."
Nelson Lund is a professor at George Mason University School of Law.