From the March 2000 Idaho Observer:

The Right to Keep and Bear Arms -- Affirmed!

Do we have the right to keep and bear arms? Can the Congress “infringe” on that right, as they so often do? Do courts always ignore our rights and tread on the Constitution like a door matt? Not in Texas -- at least not this time.

By Hari Heath

While we have grown accustomed to the latest travesty of justice committed by our judiciary, things in Texas are a bit different. On April 7, 1999, United States District Judge Sam R. Cummings issued a 33-page Amended Memorandum Opinion in the UNITED STATES OF AMERICA v. TIMOTHY JOE EMERSON case (46 F. Supp 2d 598). This Opinion of the court is one of the most thorough, yet concise papers ever written on the 2nd Amendment -- with the added advantage of being a published legal opinion.

Emerson was being federally prosecuted for possession of a firearm while being under a state restraining order. His soon-to-be ex-wife alleged in the state court that Mr. Emerson had threatened to kill the man with which she was having an adulterous affair, but no evidence was offered to prove this and the state court made no findings to that effect.

Emerson allegedly violated 18 USC 922(g)(8), a federal law which our Congress enacted to somehow regulate guns relative to state protection orders. Emerson challenged the law as an unconstitutional exercise of the commerce clause; and filed 2nd, 5th and 10th Amendment challenges in a motion to dismiss. Interestingly, the commerce clause and 10th Amendment challenges failed to dismiss the case, but the 2nd and 5th Amendment challenges terminated the action.

Federal Judge Cummings did his homework on this case. His published opinion includes an analysis of 2nd Amendment schools of thought, analysis of text that has been published on the subject of the 2nd Amendment, historical analysis of the 2nd Amendment, English and colonial history of the right to keep and bear arms, the constitutional ratification debates, the intent with regard to the drafting of the 2nd Amendment, structural analysis, judicial interpretations, prudential concerns and, finally, the constitutionality of the statute Emerson was charged with having violated.

It's all there folks, with clear factual evidence of the individual right to keep and bear arms secured by the federal Constitution. If you love your guns, you'll love this court decision.

Judge Cummings wrote, “A historical examination of the right to bear arms, from English antecedents to the drafting of the Second Amendment, bears proof that the right to bear arms has consistently been, and should still be, construed as an individual right.”

Does the right to keep and bear arms include the right to possess weaponry for revolutionary acts against tyranny? According to the court: “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. Without that individual right, the colonists never could have won the Revolutionary War. After declaring independence from England and establishing a new government through the Constitution, the American founders sought to codify the individual right to bear arms, as did their forebearers one hundred years earlier in the English Bill of Rights. A foundation of American political thought during the Revolutionary period was the well-justified concern about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny.”

Wow, and this is a federal Judge's opinion! Not only does the judge himself eloquently state the facts on guns and our freedoms, but his opinion is full of citations throughout history on the subject. Noah Webster is quoted, stating, “Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.”

And from M.T. Cicero in “The Citizens of America,” “ Whenever, therefore, the profession of arms becomes a distinct order in the state...the end of the social compact is defeated....”

How true in our current police state 2000, and with our military sent hither to fight other people's wars. Cicero further said “No free government was ever founded, or ever preserved its liberty, without uniting the characters of the citizen and the soldier in those destined for the defense of the state...Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.”

Judge Cummings' opinion goes into great detail on the ratification process for the Constitution and the amendments. He gleaned the meaning of the Second Amendment from the structure and placement of that right during the debates. “That Madison envisioned a personal right to bear arms, rather than merely a right for the states to organize militias, is evident from his desired placement of the right in the Constitution. Madison's original plan was to designate the amendments as inserts between specific sections of the existing Constitution, rather than as separate amendments added to the end of the document. Madison did not designate the right to keep and bear arms as a limitation of the militia clause of Section 8 of Article 1. Rather he placed it with a group of provisions (with freedom of speech and the press) to be inserted in `Article 1, Section 9, between clauses 3 and 4.' Such a designation would have placed this right immediately following the few individual rights protected in the original Constitution, dealing with the suspension of bills of attainder, habeas corpus, and ex post facto laws. Thus Madison aligned the right to bear arms along with the other individual rights of freedom of religion and the press, rather than with the congressional power to regulate the militia,” the judge memorialized in his published opinion.

The question of whether the right to bear arms is an individual right or a state's right, is rather succinctly stated by a quote in the opinion from David Harmer, “After all, the Bill of Rights is not a bill of states' rights, but the bill of rights retained by the people.”

Harmer's statement should clear up any misconceptions about whose right it is to keep and bear arms.

The court did note several other federal court decisions that did not establish an individual right to keep and bear arms, but rather ruled it to be a “collective” right, or right held by the states. The Cummings court then reviewed “the only modern 2nd Amendment case from the Supreme Court, U.S. v. Miller (307 US 174, [1939]). Miller was charged with moving an unregistered sawed off shotgun in interstate commerce. A lower court had agreed with Miller that the law he had been prosecuted under was a violatation of his 2nd Amendment rights. The Supreme Court reversed the lower court saying there was no evidence showing that a sawed-off shotgun “at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia.” And, “Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

Judge Cummings stated, “ It is difficult to interpret Miller as rendering the Second Amendment meaningless as a control on Congress. Ironically, one can read Miller as supporting some of the most extreme anti-gun control arguments; for example, that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly used for modern warfare, including, of course, assault weapons.”

Judge Cummings further stated that, “Miller did not answer the crucial question of whether the Second Amendment embodies an individual or collective right to bear arms. Although its holding has been used to justify many previous lower federal court rulings circumscribing Second Amendment rights, the Court in Miller simply chose a very narrow way to rule on the issue of gun possession under the Second Amendment, and left for another day further questions of Second Amendment construction.”

The Texas federal court further cited the U.S. Supreme Court in Printz v. US (521 US 898, 937-38 [1997]). “This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. If, however, the Second Amendment is read to confer a personal right to `keep and bear arms,' a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections.”

And what does Judge Cummings have to say about Congress' meddling in state court divorce orders? “It is absurd that a boilerplate state court divorce order can collaterally and automatically extinguish a law-abiding citizen's Second Amendment rights, particularly when neither the judge issuing the order, nor the parties, nor their attorneys are aware of the federal criminal penalties arising from firearm possession after entry of the restraining order. That such a routine 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 firearm possession. This statute exceeds that limit and, therefore, it is unconstitutional.”

Take that you gungrabbing Congresscritters!

This is a federal district court ruling, which is under appeal in the 5th Circuit (District courts are the trial courts and have broad discretion in their rulings). It is difficult to overturn their decisions with an appeal, unless certain procedural errors were committed. With the entire policy of federal gun control on the line, you can bet the government will try everything to overturn this decision.

The Gun Owners of America have an Amicus Brief in the case which can be viewed online at Then the Supreme Court may finally get to answer that Second Amendment question, if they chose to hear it. However, the Supreme Court only hears about one out of every 500 cases sent to it, so the 2nd Amendment question could remain a question for some time yet.

The Second Amendment Foundation has filed a civil suit against the U.S. Conference of Mayors and certain individual mayors for conspiracy to violate civil and constitutional rights, as well as the creation of undue burden on lawful interstate commerce. This suit features the Emerson case prominently, and is based on the Mayors' harassment suits against the gun manufacturers.

Usually our modern courts try all manner of treasonous trepidation's to hide the truth. Here's one Texas federal court that shot straight and hit the target!

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