In the case of Dr. Timothy Joe Emerson, a Texas physician charged with violating the federal Violence Against Women Act, gun advocates get a surprise victory.
On Oct. 16, 2001, the United States Court of Appeals for the Fifth Circuit became the first federal appellate court to declare that the Second Amendment protects the right of individuals to own firearms. United States v. Emerson, No. 99-10331 (5th Cir. Oct. 16, 2001).
Prior to the Fifth Circuit's decision, every court of appeals to consider the issue had concluded that the Second Amendment protects only the right of the states to maintain militias — a collective right of gun ownership.
The full text of the Second Amendment provides that, "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."
The NRA said that it was "gratified" by the Fifth Circuit's decision. The Brady Center to Prevent Gun Violence called the decision "a gross distortion of American constitutional history and prior rulings of the U.S. Supreme Court."
Despite its interpretation of the Second Amendment, the Fifth Circuit allowed the prosecution of Dr. Timothy Joe Emerson — a Texas physician charged with violating a provision of the federal Violence Against Women Act that makes it a crime for someone under a domestic restraining order to possess a firearm — to go forward.
The fact that the Second Amendment protects individual gun ownership rights, the court reasoned, "does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable."
Because the court allowed the prosecution of Dr. Emerson to proceed, one of the three judges on the Fifth Circuit panel that heard the case argued that the court should not have discussed the broader, Second Amendment issues.
Judge Robert Parker explained that the question of "whether the right to keep and bear arms is collective or individual [was] of no legal consequence" to the outcome of the case given that the right, whatever its source, is clearly subject to reasonable restrictions.
Whether the source of the right will have a bearing on future cases is an open question.