By: Jason Robb, attorney - The Knights

The Second Amendment to the Federal Constitution of the United States of America states, “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.” This amendment has been hotly debated for years between those who hate the Second Amendment and those who respect the wisdom of our founding fathers.

Senator Charles Schumer of New York and Handgun Control, Inc. with its loud mouth spokesperson, Sarah Brady, are attempting to dismantle the Second Amendment piece by piece through legislation and by orchestrating law suits against gun manufacturers. As I am writing this, Colt announced that is will no longer make most of their hand guns for the public for fear of being sued.

For many years, it appeared we were losing the battle to politicians who were more interested in their political careers than what was in the best interest of America-an armed society. As all of us know, the mark of a tyrant is to disarm its citizens. It has happened before-it is happening again.

Yet, the tide may be changing in our direction. Richard Willing reported in a recent issue of USA Today,"For the first time, a federal judge has ruled that the Second Amendment guarantees an individual right to own a gun.”

The U.S. Supreme Court has set up three ways it will scrutinize individual rights: (1) strict scrutiny, (2) intermediate scrutiny, and (3) rational basis. In strict scrutiny, the government has to have a compelling interest to deny an individual’s right; intermediate scrutiny, an important government interest; and rational basis, the government’s interest has to be rationally related to its objective. Under strict scrutiny, the government rarely satisfies the test because it involves a fundamental right. For example living (life) is a fundamental - God given right. The government does not have the authority to deny"life’ to a citizen. However, it does reserve the right (duty-responsibility) to deny life to someone, for example, who commits murder. Thus, if owning a gun is a fundamental right as was ruled in the U.S. District Court by Judge Sam Cummings, then virtually all the present gun laws would like be invalidated.

This particular case came about when Sacha Emerson, a nurse in San Angelo, Texas filed for divorce. The local court placed a restraining order on her husband, physician Timothy Emerson, after she alleged he threatened her boyfriend, Id. Timothy Emerson owned a handgun, which automatically placed him in violation of a federal law that prohibited people to own guns under state restraining order in domestic disputes. The case never went to trial because Judge Cummings ruled that denying gun ownership to those under a restraining order was unconstitutional infringement of the “individual right to bear arms.”

Judge Cumming’s also stated that the federal law “is unconstitutional because it allows a state court divorce preceding, without particularized findings of the threat of future violence, to automatically deprive a citizen of his secondment amendment rights.”

The first U.S. Supreme Court dealing with the right to carry a gun was in U.S. v. Miller. In that case, an Arkansas bootlegger, Jack Miller, was indicted under the first national gun law for carrying a sawed-off shot gun across state lines. Miller argued his right was protected under the Second Amendment, but the Court disagreed and said the shotgun has no “reasonable relationship to the preservation of efficiency of a well-regulated Militia, “ and thus not protected by the Amendment. Since that decision, gun control laws have been upheld as long as there is an exemption for the National Guard and the police. Id.

However, what is interesting in all of this, is that some liberal scholars, who have backed gun control laws for years, are now beginning to see the light and are backing individual-right proponents. People like Sanford Levinson of the University of Texas Law School and the well known Lawrence Tribe of Harvard University, have changed their opinion and now say the Second Amendment includes more than a militia right, but an individual’s right t own firearms. Tribe has even included his new view in the updated version of his treatise. American Constitutional Law., id.

If the Fifth Circuit upholds the case, as it should if it has any knowledge of the history of our country, it would conflict with the other Circuits and most likely, an immediate review to the U.S. Supreme Court. Attorney Guinn, who represents Emerson said he is going to argue the Second Amendment and its promise of the “right of the people to keep and bear arms.” According to Guinn, the"people” means the people, “What else could it mean.”

The Knights Party / PO Box 2222 / Harrison, Arkansas 72601 / 870-427-3414 / Pastor Thomas Robb, dir.