It is hard to find a federal judge more friendly to "gun rights" than Judge Sam Cummings of Lubbock, Texas. Yet even Judge Cummings refuses to follow the NRA off the cliff of Second Amendment extremism.
Judge Cummings achieved iconic status in the "gun rights" community in 1999 when, in U.S. v. Emerson, he became the first federal judge to rule that the Second Amendment confers an individual right to possess guns for private purposes. That ruling, literally, was unprecedented. It also was out of step with the Supreme Court's view of the matter, reflected in a 1939 opinion that since the "obvious purpose" of the Second Amendment guarantee was "to assure the continuation" of a "well regulated Militia," the Amendment "must be interpreted and applied with that end in view." At the time of his ruling, no federal Circuit Court had read the Amendment as conferring a right divorced from the militia purpose.
Indeed Judge Cummings was sufficiently committed to a broad reading of the Second Amendment that, in the Emerson case, he dismissed the indictment of a very dangerous man for possession of a gun while subject to a restraining order. Timothy Joe Emerson had issued death threats against his estranged wife and her boyfriend, as well as pointing a Beretta pistol at his wife and their daughter during an argument. Judge Cummings, nevertheless, came down foursquare for Emerson's constitutional right to be armed.
As is now well known, Judge Cummings' unprecedented view of the Second Amendment was endorsed by the Supreme Court nine years later in District of Columbia v. Heller, in which the High Court, in a 5-4 decision, defied its own precedent in reading the Amendment to confer an individual right unrelated to militia service. Since Heller, the National Rifle Association and other "gun rights" groups have launched a massive legal offensive against existing gun laws (while at the same time arguing that we need to "enforce existing laws" instead of enacting new ones).
Given Judge Cummings' record in gun cases, it is obvious why the NRA chose his court to file a constitutional challenge to the Texas law setting 21 as the minimum age to carry a concealed weapon in that State. Crime statistics show that arrests for murder and manslaughter peak at age 18, but the NRA was undeterred in arguing that 18-year-olds have a constitutional right to carry concealed and loaded handguns in public places.
The NRA's lawsuit became an embarrassment early on, when it was revealed that the NRA had recruited as the named plaintiff (and poster boy for teen concealed carry) a young man who had a propensity to post on Facebook his favorite violent phrases and quotations (e.g. "After hunting men, nothing can compare."). After his infatuation with violence was exposed by the Brady Center, his utility to the NRA abruptly ended and he was dropped from the lawsuit.
The NRA's biggest problem, though, was that Judge Cummings was careful to read the Supreme Court's Heller opinion and understand that it does nothing to support the gun lobby's constitutional extremism. Much to the NRA's chagrin, Judge Cummings emphasized that the right recognized in Heller was, in his words "quite narrow," finding that "the Second Amendment does not confer a right that extends beyond the home." Judge Cummings cited the legion of other post-Heller rulings also confining Heller's scope to the possession and carrying of guns within the home. Not only did the NRA's handpicked federal judge find no constitutional right for an 18-year-old to carry handguns in public, he found no such right for anyone to do so. It is also worth noting that, four months ago, Judge Cummings rejected another NRA lawsuit and upheld the federal ban on gun dealer sales of handguns to persons under 21 years of ago, a restriction that obviously impacts the freedom of young people to have a gun inside the home for self-defense.
These Texas rulings are just the latest in a series of painful courtroom setbacks for the gun lobby. A Republican-appointed judge recently upheld the Obama Administration's modest regulatory effort to curb gun trafficking to Mexico against gun industry attack, and the D.C. Circuit, in an opinion by Reagan-appointee Douglas Ginsburg, rejected the NRA's challenge to the District of Columbia's current gun registration system and its assault weapon ban.
These gun lobby legal defeats underscore how much the NRA and its gun industry funders are dependent for their success on the tactics of political threats and intimidation. In too many legislative bodies, including the U.S. Congress, those tactics have often prevailed. A federal courtroom, however, is a far different forum, in which threats of reprisal have no place and advocates are required to offer facts and reasoned argument in support of their positions.
When the task is persuasion, instead of intimidation, the gun lobby has been firing blanks.
Dennis Henigan is the Acting President of the Brady Campaign to Prevent Gun Violence and the author of Lethal Logic: Exploding the Myths That Paralyze American Gun Policy (Potomac Books 2009).