What do alleged sniper John Allen Muhammad and Timothy Joe Emerson have in common? 18 U.S.C. 922(g)(8) — that’s what. And that’s a lot.
That federal law is the controversial one that makes a felon of a fellow who possesses a firearm after a domestic restraint has been issued against him, a controversial statute passed during a blossoming of care in Congress over spousal abuse. It is not just Muhammad’s possession of that Bushmaster .223 that enables the federal government to hold him without bond as the various offended jurisdictions decide where and for what Muhammad will be tried. It is the fact that he possessed it while a spousal restraint was in force against him. And it is the same statute that gave the FBI probable cause to search his car. It isn’t the gun that got him. It’s his ex-wife.
You know who and what John Muhammad is. But Timothy Joe Emerson is another person altogether, a Texas doctor from San Angelo whose name is involved in the biggest Second Amendment legal case ever to hit the courts. Emerson was charged with possessing a pistol after a judge had issued a restraining order during a divorce dust-up in 1998. 18 U.S.C. 922(g)(8). He pleaded the Second Amendment in his defense. And federal judge Sam Cummings of the Northern District of Texas upheld that defense. Not only that, but Judge Cummings rendered a lengthy opinion that reviewed the history of the right to bear arms from English Common Law through the permutations of American jurisprudence.
The judge examines the two schools of thought, the “states’ rights” theory and the “individual rights” theory and he concludes that the Second Amendment means the individual has this right to bear arms. Gun rights advocates hailed the Cummings decision which the government appealed to the Fifth Circuit Court of Appeals. Last fall the fifth circuit majority also endorsed the “individual rights” interpretation but said the government has the right to restrict that right. It reversed the Cummings decision and the case was sent back to Texas for trial. Doctor Emerson appealed to the U.S. Supreme Court but the highest court in the land ducked and refused to hear the appeal, avoiding the chance to settle this “militia” versus individual argument once and for all.
October 7 a federal jury in Lubbock found Emerson guilty on three counts of illegally possessing a firearm. When sentenced, he faces a $250,000 fine and five years in prison. The case that produced some of the most learned verbiage on the history of individual vs. state or collective rights is still subject to appeal.
As the Emerson verdict was being rendered in Texas, the alleged killing spree of John Muhammad was well under way. And many months before, his ex-wife had had restraints issued against him. Thus the charge on which his car was searched, and the one on which he was first sent to jail — violation of 18 U.S.C. 922(g)(8). You’ll read about it only in journalistic shorthand: “a federal weapons violation.”
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