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Posted on 11/18/2001 6:07:23 PM PST by StoneColdGOP

Decision in gun owner's favor fans 2nd Amendment debate

Appellate court affirms individual right of possession

By James P. Sweeney
COPLEY NEWS SERVICE

November 18, 2001

SACRAMENTO -- For much of the modern gun-control debate, the Second Amendment has lurked in the background, much like a prized muzzleloader mounted on a wall.

The 212-year-old, 27-word passage on militias and gun rights was the subject of much talk, but it wasn't being carried into many battles anymore.

To the chagrin of generations of gun enthusiasts, state and federal courts have ruled consistently that the Second Amendment did not establish an individual right to own and carry firearms.

Now, though, a federal appeals court has disagreed in a decision that has re-energized the long-running debate.

The ruling, however, simultaneously upheld a gun law, and it's not clear which side in the gun-control struggle might benefit most from the interpretation.

Gun-rights groups are celebrating the decision, but their adversaries are applauding the court's conclusion that government can restrict the right to keep and bear arms.

In what little common ground has emerged, both sides say the ruling might help steer the contentious debate away from its extremes -- calls for firearm bans and fears that gun laws are incremental steps toward confiscation.

"If people know that small gun controls will not lead to total gun bans, because the courts will protect people's rights to bear arms, then they'd be much more willing to compromise," said Eugene Volokh, a UCLA law professor who has written extensively on the Second Amendment.

But that likely could occur only if there is a much stronger or enduring federal court decision in support of individual gun rights, Volokh said.

The ruling does not appear to pose an immediate threat to any of California's many gun laws or those at the federal level.

Historians and legal scholars have haggled for years over the Second Amendment. It declares, "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 U.S. Supreme Court last considered the subject in 1939, when it found no basis for an individual right and concluded "the obvious purpose" of the Second Amendment was to "assure the continuation" and effectiveness of state militias.

The amendment, the high court said, "must be interpreted and applied with that end in view."

Scores of state and federal appellate courts followed that ruling until last month, when the U.S. 5th Circuit Court of Appeals in New Orleans broke legal ground in a Texas case that involves a family physician, Timothy Joe Emerson.

Emerson was indicted for possessing a handgun in violation of a court order. His ex-wife had been granted a restraining order after accusing Emerson of brandishing the weapon in front of her and their daughter and threatening to kill one of her friends.

Emerson was ordered to give up the firearm under a federal law that permits courts to disarm subjects of restraining orders. But a federal judge dismissed the indictment, in part on the grounds that it violated Emerson's Second Amendment right to possess firearms.

The appeals court embraced the conclusion on individual rights, but reinstated the indictment and sent the case back to the trial court.

"Although . . . the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions," the court held.

The decision was writted by Judge William L. Garwood and joined by Judge Harold R. DeMoss Jr. Garwood was appointed by President Reagan, DeMoss by former President Bush.

Judge Robert M. Parker, an appointee of President Clinton, concurred, although he issued a strong dissent from the Second Amendment conclusions.

Parker dismissed the court's Second Amendment foray as "dicta," a legal term for opinions that are not necessary to resolve the question before a court.

As dicta, Parker said, the individual-rights assertion is "not binding on us or any other court."

"In the final analysis," Parker wrote, "whether the right to keep and bear arms is collective or individual is of no legal consequence. It is, as duly noted by the majority opinion, a right subject to reasonable regulation."

Regardless, the National Rifle Association hailed the decision as a clear victory for gun owners.

"This is a long battle," said Jim Baker, the NRA's chief lobbyist. "But this is a very significant first step in the federal courts for the individual-rights theory."

Baker said the NRA has held a series of meetings since the ruling to ponder how it may respond. "There are other cases in other circuits where we may want to use this opinion," he said.

Volokh predicted the ruling will increase the likelihood that the Supreme Court will take another look at the question, although probably via some other case.

But even if the Supreme Court reaches the same conclusion, it would require a separate decision to extend it to states, the UCLA professor said. The Bill of Rights applies only to Congress unless incorporated and extended to the states through the 14th Amendment.

"A second question is: Exactly what boundaries does this decision impose on gun-control laws?" Volokh said. "We know there is an individual right to free speech, but it doesn't mean all speech restrictions are unconstitutional."

Leaders of the national gun-control movement are not pleased with the departure from long-standing legal precedent. But they took more than a little solace in the end result: the upholding of a significant gun law.

The issue, said Sayre Weaver, a California lawyer prominent in gun-control circles, is whether firearms can be regulated. "The answer is yes," she said.

Dennis Henigan, legal director of the Brady Center to Prevent Gun Violence, formerly Handgun Control, doesn't foresee any shift in the politics of gun control.

"The bottom line is the Emerson decision supports the constitutionality of reasonable restraints on gun ownership," Henigan said. "From that perspective, it can hardly be regarded as a breakthrough for the gun lobby."

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