- The Washington Times - Thursday, October 18, 2001

NEW ORLEANS (AP) Gun-ownership advocates are praising a federal appeals court ruling they say makes gun ownership an individual right for first time in modern legal history.
"Clearly, the 5th Circuit has held that the Second Amendment is an individual right," said Jim Baker, chief lobbyist for the National Rifle Association.
He said the NRA was "extremely pleased" with Tuesday's ruling, which also said the right to bear arms can be restricted.
Gun-control advocates argue the Second Amendment's wording should be taken literally to mean that only members of a "well-regulated militia" have the right to bear arms.
The Second Amendment reads: "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 5th U.S. Circuit Court of Appeals court made its ruling when overturning a district judge's decision that Timothy Emerson, a San Angelo, Texas, physician, was wrongly prosecuted for buying a pistol while under a temporary restraining order meant to protect his wife and child.
It sent the case back to Texas for trial. But in its ruling, the three-judge panel also took a step into a long-fought debate over the intent of the Second Amendment of the Constitution.
The appeals court wrote that the Second Amendment preserves Americans' "right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training."
However, the court said, a restraining order is sufficient "to support the deprivation of the defendant's Second Amendment rights."
Although the Second Amendment protects an individual's right to bear arms, "that does not mean that those rights may never be made subject to any limited, narrowly tailored exceptions or restrictions," 5th Circuit Judge William Garwood wrote for the panel.
The court's ruling said the restrictions on Dr. Emerson's gun ownership were valid for as long as the restraining order was valid.
"Legally, it's a huge victory in the quest to prove that the Second Amendment is indeed an individual right," said Dr. Emerson's attorney, David Guinn, who may appeal to U.S. Supreme Court.
The Supreme Court has ruled only once in 1939 directly on the scope of the Second Amendment. In that ruling, it said there is no right to own a sawed-off shotgun in the absence of "some reasonable relationship to the preservation or efficiency of a well regulated militia."
The ruling is a mixed bag for gun-control advocates, said lawyer Ruchi Bhowmik of the Brady Center to Prevent Gun Violence.
"Their decision on the constitutionality of the violence against women act is a victory for common sense gun safety measures," Mr. Bhowmik said.
However, the Brady Center said the decision on the Second Amendment goes against established precedent.
The Texas case goes back to 1998 when Dr. Emerson's wife, Sacha, filed for divorce and was granted a temporary restraining order to prevent her husband from threatening or harming her or the couple's daughter.
Dr. Emerson was arrested after he bought a pistol. He was prosecuted on grounds that purchasing the gun was a violation of the order.
District Judge Sam Cummings of Lubbock, Texas, granted Dr. Emerson's motions to dismiss the indictment on both Second Amendment and Fifth Amendment grounds. The government appealed to the 5th Circuit, which heard arguments in the case last year.


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