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Clinton v. The Constitution
Dr. Michael S. Brown

The case is known as United States of America v. Timothy Joe Emerson. Few people will be aware of this important legal battle until it reaches the Supreme Court, perhaps next year.

Briefly, the case began with an ugly divorce fight that took place in Texas in 1998. As is commonly done in divorce cases, a judge issued a routine restraining order at the request of Mrs. Emerson. Unfortunately for Mr. Emerson, nobody told him about a federal law called the Violent Crime Control and Law Enforcement Act of 1994. This law makes it a federal felony to possess a gun if subject to a restraining order. Like all good Texans, Emerson kept a gun around the house and he was convicted of violating this rather obscure statute.

The appeal landed on the desk of one of the few federal judges who believes the Second Amendment means what it says. He did not think it was fair to deprive a citizen of an important Constitutional right without a proper hearing, so he reversed the lower court decision.

To show that he knew what he was doing, he included an impressive 12 page review of the history of the right to keep and bear arms, starting with the English common law on which our modern laws are based. His decision was appealed again by the government. Attorneys for both sides offered their oral arguments before the 5th Circuit Court of Appeals last week.

I recently spoke with some attorneys who have observed 2nd Amendment issues in the courts. It seems that good defense attorneys hate to bring up the 2nd Amendment in court for very good reasons. Since the 2nd Amendment is almost completely neglected in law school, most lawyers know very little about it. If they are told anything at all, they hear only that it guarantees the right of the National Guard to be armed. Since judges attended those same law schools, this is the interpretation that they normally use. Defense attorneys who argue otherwise, along with their clients, are dealt with harshly. Therefore, only the most desperate or incompetent counselors ever use the 2nd Amendment as a defense.

This situation is self perpetuating. Judges see the 2nd Amendment cited by underpaid public defenders representing the most undeserving clients. Each time they rule against these hapless counselors and loathsome criminals, another anti-Second Amendment decision is recorded in legal history. These poorly argued cases can then be used by government lawyers to show that legal precedent is on their side.

Since judges and government prosecutors occupy a high place in society's food chain, it is easy for them to deny the standard model of the 2nd Amendment. Its not that they hate guns. On the contrary, many legal folks are avid shooters and have substantial gun collections. Like many politicians and celebrities, they simply believe that their elite status entitles them to keep and bear arms while they deny that right to the unwashed lower classes.

Of course you won't hear that spoken publicly by anyone in authority. Even Bill Clinton has made it a point to say that he does not intend to take away anyone's hunting rifles or shotguns. Note however, that this famous parser of words never mentioned the 2nd Amendment or a citizen's right to self defense.

To understand the position of the Clinton administration, one should read the chilling words of the Justice Dept. attorney who represented the government's position in the Emerson case last week.

One of the three judges asked: "You are saying that the Second Amendment is consistent with a position that you can take guns away from the public? You can restrict ownership of rifles, pistols and shotguns from all people? Is that the position of the United States?"

Government attorney William B. Mateja replied simply: "Yes".

The judge then asked: "Is it the position of the United States that persons who are not in the National Guard are afforded no protections under the Second Amendment?"

The response was: "Exactly."

So there you have it. The Justice Department, under the authority of Bill Clinton, believes that the amendment listed second in the Bill of Rights conveys only the redundant and useless concept that military units have the right to be armed. They ask us to believe that "the right of the people" really refers to the right of the state. Some say this interpretation is Orwellian, or Marxist, but one thing is certain; the founders would be shocked at how their words have been distorted.

After two centuries of neglect, there are suddenly scores of recent law articles that address the original intent of the Second Amendment. The overwhelming majority support the standard model. The founders, after much well-documented debate about militias and personal freedom, knew exactly what they were doing when they agreed on the rigid language, "shall not be infringed".

An administration known for twisting the facts has twisted them one more time.


Second Amendment Law Library

Second Amendment Foundation

United States Court of Appeals for the Fifth Circuit

Jurist: The Legal Education Network

Dr. Michael Brown is an optometrist and gun rights columnist who moderates an email list for discussion of gun issues in Washington state. He may be reached at: or through his web site at:  Several of Dr. Brown's articles are also hosted on this web site, by clicking here.


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