°Ä²Ê¿ª½±

The primary legal theories embraced by the declining "Patriot" movement are so bizarre that they were never taken seriously by the public or the legal community — except for one.

While courts and average citizens alike have roundly rejected theories about pseudo-legal "common-law" courts, an impending takeover of American government by the United Nations and "sovereign citizen" exemptions from tax, vehicle and fraud statutes, the Patriot view of the Second Amendment is actually gaining currency.

A central tenet of Patriot philosophy is that the Second Amendment's "right to bear arms" clause provides a fundamental right of private gun ownership to individual citizens as a protection against government tyranny. (Many Patriot leaders go one step further by claiming that a federal law, 10 U.S.C. 311, gives them the right not only to own military weapons, but to organize their own private militias.)

Gun rights advocacy organizations like the National Rifle Association (NRA) and Gun Owners of America also have promoted the view that the Second Amendment conveys a fundamental right to individual private gun ownership — and almost nine out of 10 Americans believe it.

But until recently, every federal court decision has dismissed that interpretation.

Because the Second Amendment refers to the right to bear arms in the context of the importance of maintaining state militias — the full text of the Amendment reads, "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" — the courts have not traditionally interpreted the Amendment to support a right to individual gun ownership.

But precedent may be changing.

The story goes back to November 1998, when Dr. Timothy Joe Emerson, a 40-year-old San Angelo, Texas, physician, was accused of menacing his wife and daughter with a handgun at his clinic in violation of a judge's restraining order.

Although he was subsequently acquitted in state court on charges connected to that incident, Dr. Emerson was brought up on federal criminal charges under 18 U.S.C. § 922(g)(8). This criminal provision, enacted in 1994 as part of the Violence Against Women Act, makes it a crime for someone subject to a domestic restraining order to possess or purchase a firearm.

Authorities maintained that Dr. Emerson had signed a document in 1997 that spelled out those restrictions when he purchased a Beretta handgun, even though the state judge issuing the restraining order a year later never informed Emerson of that particular federal restriction.

On Dec. 8, 1998, Dr. Emerson was indicted by a federal grand jury on five counts of illegal firearms possession relating to his ownership of guns, including an M-1 rifle, an M-14 rifle and an SKS assault weapon.

Despite an unbroken line of contrary prior case law, Emerson's attorney, David Guinn, decided to try to do something that neither Patriot zealots nor the NRA had pulled off before — mount a successful court challenge to existing Second Amendment jurisprudence by claiming that his client had a fundamental right to private gun ownership.

The Supreme Court has only directly addressed the Second Amendment three times, and only once this century, when it upheld the federal conviction of a man who possessed a sawed-off shotgun in 1939. See United States v. Miller, 307 U.S. 174 (1939).

The high court found that the defendant's sawed-off shotgun had no legitimate connection to the maintenance of a state-sponsored militia, like the National Guard.

The decision rested on the long-established view that the Second Amendment guarantees gun rights to state-regulated militias, such as the National Guard, not to private, individual citizens.

The specific defense planned by Guinn — that gun ownership is a protected and fundamental individual right — did not appear to be a promising one.

Although certain constitutional rights such as freedom of speech, freedom of religion and the guarantee of a speedy and public criminal trial have been deemed fundamental rights by the Supreme Court, private firearms ownership has not been.

When a particular right is designated as "fundamental," it is protected from governmental intrusion by the most rigorous standard of judicial review — strict scrutiny.

Any governmental restriction on an individual's fundamental rights will be struck down under strict-scrutiny analysis unless authorities can demonstrate (1) that the restriction serves a compelling state interest; and (2) the restriction's application is narrowly tailored to achieve that compelling interest.

Although the Supreme Court has not definitively ruled on the exact nature of Second Amendment rights in all circumstances, it has never deemed them to be fundamental, individual rights subject to strict-scrutiny protection. To make matters worse for Dr. Emerson's defense, the lower federal courts have been consistent and explicit in their rejection of similar claims.

In 1996, for example, the U.S. Court of Appeals for the Ninth Circuit held that "the Second Amendment is a right held by the states and does not protect the possession of a weapon by a private citizen." Hickman v. Block, 81 F.3d 98, 100-1 (9th Cir. 1996); see also United States v. Warin, 530 F.2d 103,106-7 (6th Cir. 1976)

("It is clear that the Second Amendment guarantees a collective right rather than an individual right," and rejected the "erroneous supposition that the Second Amendment is concerned with the rights of individuals rather than those of states.").

While a long shot, the defense claim had several things going for it. First, though the Supreme Court's earlier decisions were not supportive of the defense position, the rulings could be potentially distinguished from Emerson's case because Miller, the 1939 case, involved a sawed-off shotgun — a weapon no legitimate militia member would use.

Second, while it was true that every federal appellate decision on the subject explicitly rejected the very claim that Emerson was relying on, the Fifth Circuit, covering the area where Dr. Emerson lived, was the only circuit not to have issued an appellate decision on the matter.

So if Dr. Emerson could distinguish his situation from the earlier Supreme Court rulings, then the other, more restrictive federal appellate rulings would not be binding on the judge in his case.

Last, while the federal courts had been unanimous in their holdings, a small but growing minority of respected legal scholars have adopted a view supporting an individual rights interpretation of the Second Amendment.

On April 7, 1999, Guinn's long shot paid off. U.S. District Court Judge Sam Cummings, a conservative appointee of President Reagan, granted Dr. Emerson's motion to dismiss the indictment against him, in large part on Second Amendment grounds.

Judge Cummings, citing Miller, suggested that the Second Amendment's purported guarantee of "individual" gun rights may actually be more potent when the weapon is effective for militia use and protection of these rights "might turn on the usefulness of such guns in military settings."

Contrary to every other federal decision on the matter, he further ruled that the Second Amendment should be seen as protecting a fundamental individual right. "The rights of the Second Amendment should be as zealously guarded as the other individual liberties enshrined in the Bill of Rights," Cummings wrote.

Federal prosecutors have appealed to the Fifth Circuit, which heard oral arguments in June 2000. Some observers believe that no matter who wins the appeal, the case will ultimately end up before the Supreme Court for a definitive ruling.

Time will tell whether Dr. Emerson's victory represents an aberration or the dawning of a new era in the continuing legal battle over the precise meaning and coverage of the Second Amendment's "right to bear arms" clause.