5:30 p.m. June 13 Neal Knox Report

"The Court really beat up on the government" Linda Thomas of Houston ecstatically told me a few minutes ago.

She was on a cell phone, standing on the steps of Fifth Circuit Court of Appeals in New Orleans. A three-judge panel had just heard oral argument in the Emerson case, in which Lubbock, Texas, Federal Judge Sam Cummings struck down part of the 1996 Lautenberg Amendment prohibiting persons under a restraining order from possessing firearms.

The government prosecutor said the Second Amendment only applied to arms issued to militia members, in Dr. Timothy Emerson's case either the Texas National Guard or Texas State Guard. Judge Harold R. DeMoss, Jr., a George Bush appointee, told him he was misreading the 1939 Miller case.

The court held in Miller that there had been no evidence that Miller's sawed-off shotgun was a militia-type arm. Nothing was said about the gun having to have been issued.

Judge DeMoss asked the prosecutor if Dr. Emerson's Beretta 92 9mm pistol isn't the type used by armies. Of course, it's the standard U.S. sidearm.

Judge DeMoss also raised a critical question that addresses the Tenth Amendment. "I have a 12 gauge and 16 gauge shotgun, and a .30 caliber deer rifle in my closet at home. Can you tell me how those affect interstate commerce."

All Federal gun laws are based on the power of the Congress to regulate interstate commerce. The present Supreme Court has struck down several laws in a series of narrow decisions based on the Tenth Amendment's stipulation that powers not specifically delegated to Congress "are reserved to the states and the people, respectively."

Judge Robert M. Parker, appointed by President Carter, and to the appellate court by President Clinton, told the government: "I don't want you to lose any sleep over this, but Judge Garwood (the senior judge) and I between us have enough guns to start a revolution in most South American countries."

Linda, a gun rights activist who has just finished law school and is preparing for the bar exam, said the folks on our side of the aisle "are all smiles."

Unlike most firearms-related court cases, there was no reluctance to discuss the Second Amendment, and, Linda said, the judges had done their homework. "It was like sitting in on a Gun Rights Policy Conference legal seminar."

One thing about it, Timothy Emerson's case is going to have a full and fair hearing. And so will the Second Amendment.

If the Fifth Circuit concurs with the trial judge that the Second Amendment protects gun ownership as an individual right -- which now seems quite possible -- there would be a conflict between the circuit courts, almost guaranteeing a Supreme Court hearing after the next election.

That's just one more reason to make certain that Al Gore isn't in a position to appoint Supreme Court justices.