Constitutional Opinions: The Ballad of Timothy Joe
Rabkin, Jeremy
CONSTITUTIONAL OPINIONS by Jeremy Rabkin The Ballad of Timothy Joe Apolitical candidate's words can come back to haunt him, if an opponent quotes them back to a different audience in a different...
...But then a lot of outsiders got interested in this case which, as the government's appellate briefs said, had "stunned" and "shocked the legal community...
...It would thus imply that states could now challenge Pentagon policy regarding the National Guard by invoking the Second Amendment...
...When the court first asked what rights safeguarded in the Bill of Rights should apply to state governments, it said the test was whether a particular right is of the "essence of a scheme of ordered liberty" (Palko v. Conn., 1937...
...I particularly recommend the brief submitted by Academics for the Second Amendment—which I read very closely before signing...
...These were routine provisions, drawn up by Sacha's lawyer, who then accompanied her to the hearing on the order...
...It is a serious argument, though it may not impress the court—as the class in question (those subject to restraining orders flowing out of domestic abuse) may strike most justices as already sufficiently dangerous to justify special disabilities...
...At best, if the case gets a sympathetic hearing from the Supreme Court, it will be one episode in an extended campaign of litigation and political maneuver...
...Suddenly, a major constitutional debate seemed underway...
...The meaning of the Constitution should never be settled by the passions of advocacy groups...
...In a subsequent encounter at Emerson's office, Sacha said something that angered her estranged husband and he told her to leave...
...But Emerson is a reminder that judges cannot silence the claims of history and logic when an active citizenry has the courage to keep asserting its rights...
...Lund makes a stunning argument (developed further in his 1999 article for the Texas Review ofLaw and Politics): If the Second Amendment only protected the right of the states to maintain militias, it would imply that the amendment had somehow limited or revised the constitutional power granted to Congress in Article I, Sec...
...v. Miller...
...When the Supreme Court last looked at the amendment in 1939, it emphasized the first clause, in upholding a federal prohibition on sawed-off shotguns on the ground that such weapons were not relevant to military service in the National Guard (U.S...
...As Lund points out, the opening clause of the Second Amendment gives the highest authority to the claim that an armed citizenry is "necessary to the security of a free state...
...The wider truth is that they—and now, the courts —have been helped in raising this issue because citizen groups like the National Rifle Association have long kept alive the popular notion of a "constitutional right" of private citizens to possess firearms...
...But this time a courageous federal judge gave the argument serious consideration...
...One piece of that package, "The Gun-Free School Zone Act," was scarcely noticed at the time...
...But federal prosecutors decided this matter required still higher authority—which is where the 1994 crime bill comes in...
...Lund has an ingenious argument that this one should be, too...
...Laws can sit out there for a long time before triggering an unexpected reaction...
...Yet the scholars themselves may gain a hearing because of a supportive political background...
...v. Lopez...
...Clearly, the original purpose of the Second Amendment was to restrain Congress...
...But there was such a law...
...To emphasize his point, Timothy Joe took out a gun and placed it on his desk...
...Or (by overruling a prior decision of a three-judge panel), the entire Fifth Circuit, sitting en bane, could endorse the Tenth Amendment argument that the statute interferes with reserved powers of the states...
...The most recent successful Second Amendment appeal was in 1938 — a ruling that was promptly overturned by the U.S...
...The last must have seemed a particularly desperate claim...
...In fact, a lively debate on the meaning of the Second Amendment has been stirring for more than fifteen years, but largely in academic journals...
...But it is not at all absurd to think that the Second Amendment's framers meant to acknowledge that the federal government, whatever else it could do, could not disarm individual citizens—because an armed citizenry was the base of the "militia" in the eighteenth century, when states required all adult males to be on call for local defense or policing duties...
...It could, for example, endorse Judge Cummings's finding that enforcing such an obscure law without proper warning to Emerson would violate due process...
...The wording of the amendment itself suggests it has something to do with state militias (now organized as state divisions of the National Guard): "A A divorce case that strengthened the right to bear arms...
...The Lund brief argues against this on thegrounds that if Congress has the power to exclude whole classes of citizens from Second Amendment rights, it could nullify the force of the amendment by extending such classes to encompass most of the American people...
...Apart from these complications, a Supreme Court ruling that acknowledges real restrictions on federal regulation might still leave open the extent to which states can enact their own gun control measures...
...After various petitions for extra time, amicus briefs came in from some two dozen outside organizations...
...She complained to the police, who alerted a local prosecutor...
...attorney's office set appeals in motion...
...What these cases have done for the Tenth Amendment, another case, now working its way through the lower courts, may soon do for the Second Amendment...
...It is against the law in Texas—as in every other state—to threaten someone with a gun, even if you don't fire it...
...That's what has happened with the Omnibus Crime package of 1994, which the Clinton administration and congressional liberals loaded down with cheap political gestures on the eve of midterm elections...
...Still, it's heartening that serious scholarship can actually have some impact on judicial interpretations of the Constitution...
...The case challenges another piece of legislative debris from that 1994 crime bill...
...Nelson Lund of the George Mason University School of Law, a leading scholar in this field...
...v. Emerson began with a divorce proceeding in Tom Green County, Texas—something that ought to be very far removed from grandstanding federal authorities...
...The compelling new scholarship has won recognition even from scholars sympathetic to gun control...
...Laurence Tribe, who had previously insisted that the Second Amendment concerned only organized military formations, now endorses the claim of an individual right to keep arms under the Second Amendment...
...It can be found, with other briefs in Emerson, on the Potomac Institute's Website, www.potomac-inc.org...
...The U.S...
...That's one important difference between speeches and laws...
...Timothy Joe Emerson, who did not bother to get a lawyer, readily agreed to its terms...
...Most constitutional scholars subsequently followed this line and dismissed the notion that the Second Amendment was any bar to gun control measures affecting private citizens...
...CONSTITUTIONAL OPINIONS by Jeremy Rabkin The Ballad of Timothy Joe Apolitical candidate's words can come back to haunt him, if an opponent quotes them back to a different audience in a different context...
...Emerson was in serious trouble...
...An obscure provision of that legislation makes it a federal crime even to possess a firearm if one is the subject of a restraining order involving physical threats to an "intimate partner or child...
...Another piece of that package, the Violence Against Women Act, is now before the Supreme Court on a similar argument about federal overreaching (Brzonkala v. Morrison...
...The outside amicus briefs flesh out the argument even more...
...However, there are good reaJEREMY RABKIN iS a professor of government at Cornell University...
...Judge Sam Cummings's opinion, filed in April 1999, presents a competent review of academic literature on the Second Amendment and holds that Emerson is right—Congress does not have the power to deprive citizens of their right to possess firearms on so flimsy a basis as it did here...
...U.S...
...In the latest edition of his constitutional law treatise, Harvard's44 The new scholarship has won recognition even from anti-gun scholars...
...40 April z000 • The American Spectator 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...
...8 to "provide for the organizing, arming and disciplining" of the state militias...
...Even if the case does reach the Supreme Court, it could rule that there is a personal right of citizens to keep firearms under the Second Amendment and still hold that Congress was entitled to restrict this right for all persons subject to restraining orders...
...An amicus brief submitted by an "ad hoc group of law professors and historians" on behalf of federal prosecution in Emerson is signed by 52 scholars, but none of them is a prominent constitutional law scholar, case book editor, or author of a general treatise...
...T he Fifth Circuit may yet dismiss the Emerson prosecution without relying on the Second Amendment...
...Supreme Court...
...sons to think that the judges will prefer to sweep away (or substantially curtail) the 1994 gun control measure...
...The larger debate on gun control is not going to be settled by courts, whatever happens in Emerson...
...But most provisions of the Bill of Rights have since been applied to the states...
...Claiming to be bereft of funds, Emerson was given a public defender...
...The judges could also save Emerson by interpreting the statute to apply only to those subject to restraining orders based on explicit judicial findings of dangerous propensities — and on such a narrow question of statutory interpretation, the Supreme Court might refuse to hear any further appeal...
...Much recent scholarship, however, has emphasized that the framers of the Second Amendment did mean to recognize a personal right to own guns...
...Neither the state judge who presided nor anyone else mentioned a federal law that might apply to the order...
...But after the election, mere words tend to be forgotten...
...Judge Cummings reviewed this literature in reaching his decision...
...Although Emerson had not been found guilty of violent conduct, he was technically within the reach of this obscure federal statute...
...To uphold this enactment as valid law, the courts may be forced to say that it's the Second Amendment that is mere historical flotsam and of no contemporary legal significance...
...The American Spectator • April z000 41...
...The lawyer petitioned a federal judge to throw out the charges, raising a whole series of constitutional objections...
...When Sacha Emerson filed for divorce in the state court system, she requested a standard preliminary resnaining order against her husband, instructing him not to dispose of financial assets, not to take custody of their child, not to "stalk" or "harass" her or their child, or threaten them with physical violence...
...attorney promptly secured his indictment by a federal grand jury...
...Prosecution in such circumstances would, he argued, violate due process, violate the Tenth Amendment limitation on congressional power—and violate the defendant's Second Amendment right to possess firearms...
...A U.S...
...Other lower courts, it's true, have consistently rejected the sort of constitutional argument launched by the defense in Emerson, but the argument has not previously been made so strongly...
...But a federal prosecution under that measure subsequently launched a constitutional appeal that allowed the Supreme Court—for the first time since the 1930's—to find broad limits on the congressional power to regulate commerce (U.S...
...This would be absurd...
...It was crafted by Prof...
Vol. 33 • April 2000 • No. 3
