Federal Court Says Second Amendment
Protects Individual Right
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"...We find that the history of the Second Amendment reinforces the
plain meaning of its text, namely that it protects individual
Americans in their right to keep and bear arms..." |
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-- Majority opinion, Fifth Circuit Court of Appeals, US v. Emerson |
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On Tuesday, the Fifth Circuit Court of Appeals handed down its
long-anticipated ruling in the case of U.S.
v. Emerson, declaring
in clear and ringing terms that the U.S. Constitution`s Second
Amendment protects an individual Right to Keep and Bear Arms. In
its decision, the court forcefully rejected all variants of the
"collective right" theory advanced in recent years by anti-gun
lobbies and their ideologues.
Prof. Nelson Lund |
The ruling, which George Mason University law professor Nelson
Lund called, "[T]he most important and favorable Second Amendment
judicial decision in American history," echos U.S. Attorney
General John Ashcroft in recognizing the right of individuals to
keep and bear arms. Ashcroft, you will recall, has been subjected
to numerous attacks from gun-ban extremists for his publicly
stated position on the true meaning of the Second Amendment.
NRA-ILA Executive Director James Jay Baker hailed Tuesday`s
ruling, stating, "This is clear corroboration of what reputable
historians and constitutional scholars have said consistently;
that the Second Amendment, like other rights, is an individual
right designed to protect rights of the people, not to expand the
powers of government." Baker went on to say, "[O]ur client-the
Second Amendment-has had its day in court. And the Second
Amendment has emerged victorious..."
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"...[T]he most important and favorable Second Amendment
judicial decision in American history..." |
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-- George Mason University
law professor Nelson Lund
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The court`s unanimous decision in U.S. v. Emerson actually
reversed a lower court dismissal on Second Amendment grounds of
the indictment of a Texas doctor charged with violating the
section of federal firearms law [§ 922(g)(8)] criminalizing gun
possession by the subject of a domestic restraining order. The
court concluded that § 922(g)(8) is constitutional as applied to
Dr. Emerson, saying that the individual right to arms may be
subjected to "limited, narrowly tailored specific exceptions or
restrictions for particular cases that are reasonable and not
inconsistent with the right of Americans generally to
individually keep and bear their private arms as historically
understood in this country."
But Tuesday`s Emerson opinion - written by
Chief Judge William Garwood
and supported by Judge Harold DeMoss -
noted how the
Clinton-Reno Justice Department steadfastly maintained that the
Supreme Court`s decision in U. S.
v. Miller mandated the court`s
rejection of the individual right interpretation of the Second
Amendment. "We disagree," Judge Garwood wrote, saying the Miller
decision did not resolve the individual versus collective right
issue, but "to the extent that Miller sheds light on the matter,
it cuts against" the Clinton-Reno position.
"We turn, therefore, to an analysis of history and wording of the
Second Amendment for guidance. In undertaking this analysis, we
are mindful that almost all of our sister circuits have rejected
any individual rights view of the Second Amendment. However, it
respectfully appears to us that all or almost all of these
opinions seem to have done so either on the erroneous assumption
that Miller resolved that issue or without sufficient articulated
examination of the history and text of the Second Amendment."
To correct that deficiency, the court produced its own meticulous
84-page historical examination, concluding:
"We have found no historical evidence that the Second Amendment
was intended to convey militia power to the states, limit the
federal government`s power to maintain a standing army, or
applies only to members of a select militia while on active duty.
All of the evidence indicates that the Second Amendment, like
other parts of the Bill of Rights, applies to and protects
individual Americans.
"We find that the history of the Second Amendment reinforces the
plain meaning of its text, namely that it protects individual
Americans in their right to keep and bear arms whether or not
they are a member of a select militia or performing active
military service or training.
"We reject the collective rights and sophisticated collective
rights models for interpreting the Second Amendment. We hold,
consistent with Miller, that it protects the right of
individuals, including those not then actually a member of any
militia or engaged in active military service or training, to
privately possess and bear their own firearms... that are
suitable as personal, individual weapons and are not of the
general kind or type excluded by Miller."
Wayne
LaPierre |
In sum, the Fifth Circuit`s embrace of the individual right
interpretation of the Second Amendment is obviously very
significant. The deeper political meaning of this decision was
summed up by NRA Executive Vice President Wayne LaPierre who
said:
"This decision should be read by every American interested in
knowing the true meaning of the Second Amendment. The court said
in no uncertain terms that it`s an individual right. The court
also cut through the political fog and media hype and exposes the
real aims of those who advocate that the right to keep and bear
arms applies to only government and not the people.
"In its opinion, the court clearly saw the dangers to individual
liberty, when it defined the Janet Reno Justice Department`s
position as being based on a model where 'the Second Amendment
poses no obstacle to the wholesale disarmament of the American
people.` In totally rejecting that position, the court exposed
the end game of those who would deny Second Amendment rights to
individual Americans."
Tuesday`s ruling represents yet another stunning judicial defeat
for the gun-ban movement - a dramatic avalanche of losses in the
courts that has been piling up for the past several years. Not
surprisingly, the gun-ban lobby formally known as HCI issued a
confusing release praising the ruling, but criticizing the
conclusions on which the ruling was based. The gun-ban lobby`s
lead attorney, Dennis Henigan, suggested he and his anti-gun
cronies would be better suited at interpreting the Constitution
than a panel of federal justices with decades of experience.
Henigan`s position is also at odds, of course, with a legion of
constitutional scholars and attorneys, not to mention our
Founding Fathers. (Henigan`s refusal to admit he is wrong is not
too surprising, considering that just last week he wildly
misrepresented the status of the failing strategy of using
reckless lawsuits to destroy the firearms industry.) Curiously,
however, the Violence Policy Center (VPC) - an obscure, radical
gun-ban organization - issued a release praising the decision
without reservation.
The long-term impact this ruling will have on the debate over gun
control could take years to evolve, as Professor Lund told
National Review Online, "It is unlikely that the Supreme Court
will agree to review the case. The Fifth Circuit`s decision
marked a very sharp break with precedent in the other courts of
appeals, and the Supreme Court will probably want to see whether
or not other lower courts adopt the Fifth Circuit`s approach."
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More Lawsuit-related Info
The Text of the decision
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