US Constitution Second Amendment vs. Restraining OrdersWritten by: Rob Print This Article
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Gun control laws are likely to be a topic of further discord under the Obama Administration. The US Constitution Second Amendment 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.
Over the years, some of the federal cases involving 2nd amendment law found that there was no individual right to bear arms but that instead the right belongs to the States. Other decisions found the right to bear arms is an individual right accorded to the people of the United States, not merely to the States.
In June 2008, the US Supreme Court announced a verdict in the District of Columbia v. Heller case that upheld the individual right to own weapons:
the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home
that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.
Given this individual right, the courts have subsequently found that individual due process is necessary for removing the right of an individual to bear arms. This has been upheld in multiple case involving the violation of due process by gun control provisions of the Adam Walsh Child Protection and Safety Act.
It appears that this interpretation and application of Constitutional Law runs smack into yet more violations of due process in the form of widely used and abused temporary restraining orders frequently employed in divorces. Such orders usually include restrictions on the right to own arms. About two million of these orders are issued per year by state courts, most being issued with no due process, little to no evidence by the plaintiff, and often no court findings. Usually the restrained parties are not even notified of accusations against them or given an opportunity to defend against them before the court issues orders. State courts routinely strike down the restrained individual from not only owning a gun but even being able to see their children in what we believe is violation of constitutional due process.
To our knowledge, there have been no serious constitutional challenges mounted against the unwarranted and widespread use of temporary restraining orders without due process. We find this to be unconscionable and a serious jeopardy to the Second Amendment individual right to bear arms as these TROs are routinely used to strip people of their constitutional and civil rights. The cause of this incoherency is apparently the “political incorrectness” of challenging distorted domestic violence propaganda that assumes men as a class are abusers and women as a class are victims. Not only is this class-based thinking a violation of individual due process rights, it is not even backed by the facts. Multiple well-funded and objective studies have found that in about half of relationships with domestic violence it is mutual, meaning both women and men are committing it against each other. Of those relationships with single-party domestic violence, females perpetrate about 2/3 of it. Even if there was no constitutional law issue, clearly this evidence does not warrant assuming that all men are prone to violence and should have their rights stripped away merely by accusation.
(See False Feminists and Abusive and Murderous Women for more information on the widely spread distortions surrounding domestic violence statistics.)
A very sad and egregious example of this unconstitutional use of temporary restraining orders to ban citizens from owning guns is the story of Dr. Tim Emerson of San Angelo, Texas.
Dr. Emerson’s ex-wife, Sacha, obtained a temporary restraining order against him without any evidence to support it and without any findings of violence or threat of violence to support it. The Texas temporary restraining order obtained (see Emerson Orders) says nothing about firearms at all. As a self-represented party, he apparently did not fight it, not realizing that when such orders were issued, they triggered a federal law requiring him to sell or otherwise dispose of his gun collection. Nobody told Dr. Emerson of this. So he instantly became a criminal without any action on his part. All this is apparently normal process for divorces in Texas and some other states.
However, Dr. Emerson’s gun collection may not have come to the attention of the US Federal Government if Mrs. Emerson had not later come into Dr. Emerson’s business office and refused to leave. Dr. Emerson brandished one of his firearms to cause her to leave his premises. This is apparently consistent with Texas law that allows a property owner to defend property with deadly force. In his case, he did not use deadly force, merely the threat of it. He was never convicted for any crime based upon this action. But it triggered the might of the US Government to crush him mercilessly.
The US Federal Government decided to prosecute Dr. Emerson for owning weapons in violation of federal law triggered by the state temporary restraining order, even though Texas law did not preclude it.
In a decision (see Granting of Motion to Dismiss Criminal Action No. 6:98-CR-103-C) issued by the US District Court for the Northern District of Texas, the court agreed that Emerson had a right to bear arms by the 2nd amendment and dismissed the government’s case.
The Clinton Administration was not happy with this decision, so Janet “Waco” Reno appealed the case to the US Court of Appeals for Fifth Circuit to get the decision it wanted and got the dismissal reversed and the case thrown back to the lower court for a trial. Since the appeals court invalidated the constitutional challenges, the lower court was forced to try Emerson using what now appears to be an unconstitutional law. He was convicted and sentenced to 30 months in federal prison.
The decision was appealed to US Appeals Court. However, that court decided to leave the conviction in place. (See US Court of Appeals for Fifth Circuit decision in case number 03-10104.)
Emerson tried to appeal to the US Supreme Court, but they would not hear the case. However, it appears that the recent Heller decision and subsequent decisions render what was done to Dr. Emerson to be a violation of his constitutional rights to due process and to bear arms.
Dr. Emerson ended up losing his medical license, driver’s license, all contact with his daughter, and spent 30 months in federal prison. All this from being divorced by an adultress and abused by illegal government actions and immoral government policies. Today, after his stint in prison and crushing expenses from the divorce and federal trials, he’s a part-time hotel desk clerk with barely enough money to have a place to live and food to eat.
For more of our coverage of Dr. Emerson’s disastrous life-altering divorce, see Texas Doctor’s Life Destroyed by Government Abuse.