A Decision of Historic Importance

While most Americans were following events in Afghanistan and Capitol Hill last Tuesday, the United States Court of Appeals for the Fifth Circuit handed down a decision of historic importance on the Second Amendment, "the right of the people to keep and bear arms."

It has been the widely accepted view in the federal courts and among gun control advocates that the Second Amendment protects nothing at all. They have pointed to the words that precede those just quoted; the full amendment reads, "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." One theory–Judge Garwood in his opinion for the Fifth Circuit calls it the "states' rights" or "collective rights" theory–is that this just allows a state to arm its National Guard. Another theory–referred to as the "sophisticated collective rights" theory by Garwood–is that National Guard members can keep arms only if the government fails to provide them. Under either theory, as Garwood puts it, "the Second Amendment poses no obstacle to the wholesale disarmament of the American people."

Both the collective-rights and the sophisticated collective-rights theories have been endorsed by other federal appeals courts. They have often cited the only U.S. Supreme Court case on the Second Amendment, United States v. Miller, decided in 1939, in which the panel ruled that a federal ban on sawed-off shotguns did not violate the Second Amendment. Gun control advocates and bien pensant opinion have usually taken for granted the assumption that the Second Amendment is meaningless.

Not so, ruled the Fifth Circuit in United States v. Emerson. The case involved a Texas man under a state court order not to threaten his wife during a divorce case. He was prosecuted under a federal law banning gun possession by people under such court orders. The trial court ruled that the federal law violated the Second Amendment. The Fifth Circuit reversed that decision. But in a lengthy opinion, it effectively refuted the "collective rights" and "sophisticated collective rights" theories and endorsed an "individual rights" theory. "The Second Amendment does protect individual rights," Garwood wrote, but "that does not mean that those rights may never be subject to any 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." The federal law in question, the court ruled, was such an exception, and so Emerson could be prosecuted.

As one judge on the three-judge panel pointed out, most of Garwood's opinion was technically dicta-words and arguments not essential to the outcome of the case. Whatever your view of the Second Amendment, you could find the federal law in question a reasonable exception to the Second Amendment. But the court's opinion is nonetheless well worth noting. For it summarizes serious recent scholarship on the Second Amendment, and it makes mincemeat of the "collective rights" and "sophisticated rights" theories adopted by other federal appeals courts. It will now be very hard–I would say impossible–for any intellectually honest judge to rule that the Second Amendment means nothing.

Garwood starts by reexamining United States v. Miller. There the Supreme Court adopted the view held by serious scholars (many of them gun control advocates) of the meaning of the word "militia" when the Second Amendment was adopted in 1790: "The Militia comprised all males physically capable of acting in concert for the common defense." When militia is so defined, it is clear that the amendment is not about the National Guard; it does not limit "the right of the people to bear arms."

Garwood goes over each word of the text of the amendment and examines the circumstances under which it was adopted. Here he draws on the scholarship of Sanford Levinson of the University of Texas, Eugene Volokh of the University of California-Los Angeles, William Van Alstyne of Duke University, Daniel Polsby of Northwestern University, and Glenn Harlan Reynolds of the University of Tennessee. Some are gun control opponents, but by no means all; Levinson, a gun control supporter, entitled one law review article "The Embarrassing Second Amendment."

It is interesting that such scholarship should come out of the academy. A generation ago, opinion there was near-unanimous that the Second Amendment meant nothing. The whole class of people from whom judges and law professors are drawn was overwhelmingly in favor of gun control and looked forward to the passage of laws that would effectively end private gun ownership, at least of non-hunting weapons. The idea is that the public would be safer in a gunless society. But at the same time, in the decade from 1965 to 1975, violent crimes nearly tripled in the United States, with very high crime rates in central cities with the nation's toughest gun control laws. Then states, starting with Florida in 1987, passed laws allowing law-abiding citizens to get licenses to carry concealed weapons without asserting any special reason. Yale economist John Lott, in his book More Guns, Less Crime, showed that those measures tended to reduce crime, and today 33 states, with more than half the nation's population, have them. It is increasingly clear that the gun control advocates cannot produce the safety they promise. The passengers and pilots of the three airliners that crashed into the World Trade Center towers and the Pentagon were unarmed and at the mercy of hijackers with box cutters. But at least five passengers on United 93, who knew from cellphone conversations what the hijackers' intentions were, decided to fight back. Now some airline pilots are demanding the right to carry guns and will probably get it. A meek, disarmed citizenry is less safe than a proud, armed citizenry.

The Fifth Circuit's opinion in Emerson does not determine how far the right to keep and bear arms goes. It recognizes that government can limit gun ownership from dangerous characters like Emerson himself and recognizes that the government can ban possession of certain weapons–those more powerful than an ordinary soldier carries, for example. But the opinion makes an overwhelmingly strong argument that somewhere on the road between a ban on personal possession of nuclear weapons and a ban on personal possession of a rifle, the Second Amendment stands in the way. The Supreme Court will probably not hear this case. But it will surely be very difficult for any conscientious Supreme Court justice to write, as other federal appeals judges have, that the Second Amendment is just about the National Guard and that there is no individual right to keep and bear arms.

I've not seen anything about such a ruling. I went to their website, and all they have is a little tickler about a decision. I can't find anything relating to this decision on Google - perhaps a lawyer on FR could check Lexis.

I found this on Law.com. It's not related to the 10th circuit decision, but rather to the Emerson decision.

5th Circuit Gives Ammo to Both Sides in Gun Control Debate

Court says individuals have right to firearms but Congress may place limits

John Council
Texas Lawyer
October 22, 2001

In the most comprehensive ruling on the Second Amendment in modern history, the 5th U.S. Circuit Court of Appeals ruled last week that individuals have the right to own firearms, yet Congress may limit that right.

The decision is the first in decades to hold clearly that the right to bear arms belongs to ordinary citizens -- not just to the military or a "well regulated militia."

Groups on both sides of the gun control debate view the decision, U.S. v. Emerson, as groundbreaking. Several appellate lawyers believe the closely watched case eventually will go to the U.S. Supreme Court.

The case involves Timothy Joe Emerson, a San Angelo, Texas, doctor who was prosecuted in federal court after authorities determined that his ownership of a pistol violated 1994's Violence Against Women Act.

The act prohibits people who are the subject of a protective order from owning guns. Federal prosecutors indicted Emerson in 1998 for violating the act while the subject of a protective order filed by his wife as part of a divorce proceeding.

On March 30, 1999, U.S. District Judge Sam Cummings of Lubbock, Texas, decided that VAWA violated Emerson's Second Amendment rights and dismissed the indictment. The government appealed.

The Second Amendment reads: "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."

Emerson and its Second Amendment issues are tailor-made for the gun control debate. The gun rights lobby believes the amendment means that people have an "individual" right to own firearms. Gun control advocates believe the amendment grants a "collective" right to gun ownership only to militia members.

Senior Judge Will Garwood, who's no stranger to gun control cases, wrote the opinion in Emerson. In 1993, Garwood penned U.S. v. Lopez, a decision that struck down Congress' Gun-Free School Zone Act. The act made it a federal crime to possess a firearm within 1,000 feet of a school. The U.S. Supreme Court upheld Lopez in 1995 and some experts believe the same thing will happen in Emerson.

In Emerson, Garwood traced the history of the Second Amendment to its origins in the 1787 Constitutional Convention, finding it applies not only to a well-armed militia, but also to individuals.

Yet Garwood, joined by Judge Harold R. DeMoss Jr., found that an individual's right to own a gun may be limited. The majority also held that VAWA infringed on Emerson's Second Amendment rights.

"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 ... ," Garwood wrote in remanding Emerson's case to the trial court. "It is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms."

In a separate concurrence, Judge Robert M. Parker agreed with the outcome of the decision, yet he winced at the majority's decision to put a stamp of approval on the individual right to bear arms. Parker believed that it was not necessary to answer the long-debated individual-collective right question to resolve key issues in Emerson.

"No doubt the special interests and academics on both sides of this debate will take great interest in the fact that at long last some court has determined (albeit in dicta) that the Second Amendment bestows an individual right," Parker wrote. "The real issue, however, is the fact that whatever the nature or parameters of the Second Amendment right, be it collective or individual, it is a right subject to reasonable regulation.

"The debate, therefore, over the nature of the right is misplaced," Parker added. "In the final analysis, whether the right to keep and bear arms is collective or individual is of no legal consequence."

FIGHT FOR THE RIGHT

Oddly enough, leaders on both sides of the gun debate say Emerson is a victory for them. That conclusion is easy to reach because the opinion has something each side can grab onto: individual rights for the gun lobby and the ability to limit those rights for the gun control activists.

"That's the interesting thing and the brilliant thing about the way this opinion is written," says David Schenck, a partner and appellate lawyer in Dallas' Hughes & Luce. "They explain why the Second Amendment counts. But then they say, like the right to speech, that it's not unlimited."

The opinion surely will figure into any challenges to gun control laws, says Schenck, who filed an amicus brief in Emerson on behalf of the Texas State Rifle Association, as did dozens of other groups involved in the gun control debate. Schenck believes the decision will make it harder to restrict the access to guns to anyone, as long as they aren't a "criminal or a lunatic."

"There's been an explosion in the last decade or so of federal legislation concerning firearms that infringes on the right to bear arms," Schenck says. "I think [Emerson] raises the question whether that stuff is constitutional. And I think the answer to that question is probably 'no.' "

But one academic is not as impressed with the majority opinion in Emerson.

"Not only does the panel majority show a lack of judicial restraint," says Neil McCabe, a criminal law professor at South Texas College of Law, "I think what they've done can better be characterized as unconstitutional since federal courts are not permitted to give advisory opinions and that's what they've done on the issue of whether there is an individual right or a collective right in the Second Amendment."

Adds McCabe, "In doing so they have violated their oath of office in which they pledged to obey the Constitution."

Bob Dowlut, general counsel of the National Rifle Association, says there's nothing radical or outlandish about the 5th Circuit's decision, given the judicial history of the Second Amendment. Since the 1800s, courts have ruled that individuals have a right to bear arms. But that right was weakened in the 1930s as judges and lawmakers tried to crack down on gangsters by restricting access to weapons, he says.

U.S. v. Miller, a somewhat murky 1939 gun control opinion by the Supreme Court -- which the 5th Circuit cited heavily in Emerson -- was part of that trend, Dowlut says.

"But at least right now the average American citizen ... they believe they have an individual right to keep and bear arms," Dowlut says. "And what this court has said is 'yes, we simply agree with the obvious. And we disagree with decisions after the nullifications of this right.' "

Mathew Nosanchuk, litigation director of the Washington, D.C.-based Violence Policy Center, says the decision is also good news for those who advocate gun control.

"To my mind, it's a victory for federal gun control law, it's a victory for advocates [against] family violence and it's a loss for Dr. Emerson," Nosanchuk says. "The court rejected Dr. Emerson's claim that his Second Amendment right had been violated. It does not bode well for the NRA's efforts to have gun laws struck down on Second Amendment causes."

Lawyers who represent Emerson say they will likely ask the 5th Circuit for en banc review of the case. They believe Emerson's due process rights were given short shrift by the 5th Circuit because their client, a gun collector, was not notified that his hobby became a federal offense when he became the subject of a protective order.

"We think that there is validity that due process is required when otherwise innocent conduct is transposed into felony conduct," says Peter Fluery, a federal public defender in Fort Worth who represents Emerson on appeal.

Bill Mateja, an Assistant U.S. Attorney in Lubbock who prosecuted Emerson, says the doctor had plenty of notice -- Emerson filled out a federally mandated form before he bought a pistol advising him that he could not own a firearm if he was the subject of protective order.

"We're extremely pleased that we're going to get a chance to continue our prosecution of Dr. Emerson," Mateja says.

David M. Guinn Jr., a former federal public defender who represented Emerson in the trial court, appreciates that the 5th Circuit held that the Second Amendment is an individual right. But he believes the court didn't go far enough.

"I think this should be an elevated right like political speech or freedom of religion -- one that cannot be diminished," Guinn says.

Both the collective-rights and the sophisticated collective-rights theories have been endorsed by other federal appeals courts. They have often cited the only U.S. Supreme Court case on the Second Amendment, United States v. Miller, decided in 1939, in which the panel ruled that a federal ban on sawed-off shotguns did not violate the Second Amendment.

Aaarghh! I can't take it anymore! This is the second time in as many months that I have read a PRO-GUN writer repeating this lie about U.S v. Miller. The whole country must be going illiterate, thanks to our pathetic public schools. It's bad enough that the gun-grabbers spread lies which rob us of our 2nd Amendment rights; it's really pathetic when our side believes and repeats them!

In U.S. v. Miller, the Supreme Court HELD that the 2nd Amendment gives an individual the right to own any firearm that could reasonably be used in his presumed role as a member of the militia, i.e. any firearm which could reasonably be used for military purposes. The court REMANDED the case to the lower court for a factual finding on whether the sawed-off shotgun in question met this test. Though in its DICTA the court said it was not aware of such a use for sawed-off shotguns, it left this finding of fact to the lower court. Had the case ever been reheard in the lower court, or for that matter if either of the plaintiffs had been present at the Supreme Court hearing or had legal representation there, the fact would certainly have come out that indeed short-barreled shotguns were used in WWI in trench warfare--sufficient evidence to meet the criteria which the Supreme Court had established for upholding the plaintiffs' 2nd Amendment right to own these guns.

The case was never reheard in the lower court, as one of the plaintiffs (Miller) had died a month before the Supreme Court hearing and the other (Layton) subsequently accepted a plea bargain under he which he received a probation-only sentence.

Please 2A troops, go forth and stamp out the dangerous myth that U.S. v. Miller went against us. We can't afford to have OUR side spouting this, just when the courts are starting to turn back towards an honest reading of the 2nd Amendment.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.