The Right of the Government,
or The Right of the People?


By: Senator Ray Haynes

June 16, 2000


"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."

Second Amendment to the U.S. Constitution


For years, I and many other Second Amendment advocates have said that the government, with their relentless pursuit of a gun-control agenda, has only one goal: to prevent every citizen in this country from owning a firearm unless they are a police officer or are with the military. This has been vehemently denied by supporters of "reasonable gun control." Nothing more clearly proves us right than the dialogue which occurred earlier this week in the U.S. v. Emerson case, being heard by the Fifth Circuit Court of Appeals in New Orleans.

In essence, Dr. Emerson was served a standard restraining order while going through a divorce. There were over 20 separate orders within that restraining order, 3 of which ordered him to stay away from his wife. Since 1994, federal law has mandated that a person who is under a restraining order, even if there is no evidence of a threat of violence, may not OWN OR POSSESS any firearms. In one fell swoop, you are deprived of your rights under the Second Amendment of the Constitution. He was arrested and brought to trial in federal court under this provision because he owned a Beretta 9mm pistol. This prosecution ensued in spite of the fact that neither he, the attorneys involved, nor the judge in the family law court were aware of the obscure federal provision.

At the conclusion of Dr. Emerson's trial, Judge Sam Cummings ruled that individuals had a right to own weapons and the federal law was unconstitutional. The few courts that have discussed the Second Amendment in any context have refused to take a clear position on whether the right to bear arms is an individual right or a collective one. Previous court rulings on gun control have studiously avoided using Second Amendment grounds in their decision, but have neither accepted nor rejected the arguments of the absolutists and detractors of the right. This is a landmark case which, if upheld by the Fifth Circuit Court of Appeals, will likely end up before the Supreme Court.

Those in favor of gun control ascribe to the collectivists' viewpoint on gun ownership, which would prevent individual gun ownership. This would be a devastating decision for those who adhere to the belief "that the right of the people to keep and bear arms, shall not be infringed," means exactly what it says.

Initial testimony during the appeal of the Emerson case was heard earlier this week, and gives me hope that all is not lost (at least not yet). Judges Garwood, DeMoss, and Parker sit on the three judge panel, and asked some extremely direct and pressing questions of the government's prosecuting attorney, Mr. Meteja.

Judge DeMoss asked, "I have a 16 gauge shotgun in my closet at home. I have a 20-gauge shotgun. I also have a 30-caliber rifle at home. Are you saying these are "in or affecting interstate commerce?" Meteja's answer was "Yes." The government has long asserted that because a firearm may have once traveled across state lines, that the gun was "involved in interstate commerce," and therefore they have a right to regulate it. It will be interesting to see if they can make their basic precept hold up under judicial examination. If not, the federal government would lose jurisdiction, and it would revert to a state issue.

As I stated earlier, it is my firm belief that the government's ultimate goal is to deprive you and I of gun ownership. As testimony progressed, Judge Garwood asked Mr. Meteja, "You are saying that the Second Amendment is consistent with a position that you can take guns away from the public? You restrict ownership of rifles, pistols, and shotguns from all people? Is that the position of the United States?" Mr. Meteja answered, "Yes." I don't know how much plainer it could be said (although I never really expected them to actually say it on the record).

Judge Garwood 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?" Mr. Meteja responded, "Exactly." (I wonder if Congress would agree?) Meteja went on to say that even membership in the National Guard isn't enough to protect the private ownership of a firearm. It wouldn't even protect the guns owned at the home of someone in the National Guard, implying that only the gun given to them by the government for use as the government directs, while employed by the government, would be excluded from restriction and confiscation. This is, according to Attorney Meteja, the position of the government.

Remarkably, this would mean that the Founding Father's so feared that the government would disarm itself, that it inserted a guarantee that the government would always be allowed to own guns right in the middle of a list of individual rights held by the people of the United States. Anyone with the most elementary knowledge of our nation's founding would see this interpretation as nonsense.

Judge DeMoss concluded his statements to Mr. Meteja with,

"You shouldn't let it bother your sleep that Judge Garwood and I, between us, own enough guns to start a revolution in most South American countries."

The judges appeared to reject the government's position that because an item (in this case a gun) may have at one time crossed state lines, it should forever fall under the purview of the federal government and their onerous regulatory authority. Neither did they appear to give much credence to the government position that only the National Guard, during the course and scope of their duty, had the right to bear arms.I found the report of this dialogue refreshing, and hope that the Fifth Circuit Court of Appeals will, in fact, affirm Judge Cummings' ruling. The government would have no alternative but to appeal it to the Supreme Court, where many of the government's assertions, especially those making arguments under the interstate commerce clause, have gone down to defeat. A ruling affirming the lower court's decisions would forever codify our individual right to bear arms.

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Senator Ray Haynes represents the 36th Senate District, which includes Western Riverside County and Northern San Diego County. He also is the Senate Republican Caucus Whip.



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