Posted on 10/23/2001 9:22:46 PM PDT by epow
A decision of historic importance
By Michael Barone
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.
Since the original charge against Emerson has been dropped, it doesn't appear likely now that that this decision will be appealed to the USSC as I had hoped it would, and even less likely that it would be accepted. But at least one high federal court has given it's opinion that the 2nd amendment protects an individual right.
Michael Barone is right about the landmark potential of this ruling.
;^)
I certainly hope so. It's past time for the tide to turn back in our favor. The "corporate right" 2nd amendment theory was the brainchild of the early 20th century gun banners, and it has devastated our rights because the anti-gun judiciary jumped on it as though it was actually true. Maybe this is the beginning of a turnaround.
Cheap shot Michael. Emerson was aquited of the charges brought against him by his wife concerning endangerment. The jury figured she was just throwing stuff at him to destroy his standing.
Clayton Cramer's theory re: Emerson...interesting!From Clayton (noted 2nd Amendment historian, author of "Racist Roots Of Gun Control" and the best critiques of "Arming America"):
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The more I think about what the decision found, the more I wonder if the two judges who wrote the opinion had something a little deeper in mind.
There were at least four possible outcomes, depending on how they handled the two separate questions of:
1. Does the 2nd Amendment protect an individual right? YES/NO
2. Was the federal statute a violation of that right? YES/NO
Consider if they had given Emerson a straight victory: YES to both questions. The federal government would clearly need to appeal the decision to keep the federal statute in effect, and because the question of the constitutionality of the federal statute is tied up with the question of whether the 2nd Amendment protected an individual right, they would have had to make a strong effort to prove the 2nd Amendment wasn't an individual right.
What if they decided NO to both questions? Emerson would need to appeal, but without a circuit split, the Supreme Court would have little need to hear the case.
What if they decided NO the 2nd Amendment question, but YES to the unconstitutionality of the federal law based on some other grounds (such as lack of authority because it doesn't affect interstate commerce -- the point that Garwood was clearly raising oral arguments)? The federal government would appeal to the Supreme Court, but the 2nd Amendment question wouldn't even come up.
Doing it as YES and NO means that Emerson has a strong personal reason to appeal (to avoid going to prison); the circuit split about the 2nd Amendment means that the Supreme Court has very good reason to hear the appeal; the federal government can present a weak argument about whether the 2nd Amendment protects an individual right (perhaps even conceding that point, since Emerson didn't find the federal statute to be unconstitutional), and concentrate its energy on justifying the federal statute as a legitimate exercise of governmental authority.
Maybe Judge Garwood isn't just smart; maybe he's clever, too.
--Clayton E. Cramer Software Engineer by Day, Historian by Night
clayton.cramer@callatg.com
NEW: http://www.claytoncramer.com to see excerpts from my five published books and full text of a number of scholarly and popular articles.
--------------Jim again.
I had a brief conversation with attorney Peter Mancus yesterday, who already had an opinion very close to this without having discussed it with Clayton.
Iiiiiiiinteresting.
__________________
Jim March
To say the least.
I may have misunderstood something in the decision. It's 77 pages long and I was to the point of skimmimg when I neared the end of it. But, I thought I read that Judge Garwood noted near the end of the last page that the gun charge against Emerson had been dropped. I'll have to go back and check that out again. Because if Emerson is now not charged with violating the statute which was upheld by the 5th circuit, it wouldn't seem that he has standing for an appeal to the USSC.
OTOH, your analysis makes perfect sense IF he is still facing the federal charge, AND if Ashcroft's office wants Emerson appealed to the USSC where Garwood's opinion on the 2nd amendment issue could quite possibly be validated while at the same time securing a favorable ruling on the federal statute. This could be Ashcroft's vehicle for obtaining a 2nd amendment opinion from the high court favorable to his own interpretation while at the same time vigorously prosecuting a gun law violation to pacify moderates in the administration.
As you said, iiiiiiiinteresting.
Amen to that. I haven't seen an "individual right" interpretation come from a federal court EVER in my 64+ years, as best I can remember. It sounds reeeaaal good to me, even if it isn't quite everything I would have wanted it to be.
That part of the decision about the government having the power to put "reasonable" limits on the right doesn't sit real well. If allowing naked lap dancing to be protected by the free speech clause of the 1st is "reasonable", it certainly isn't "reasonable" to prohibit me from carrying a .45 hogleg in my belt down main street under the RKBA clause of the 2nd. I guess my idea of reasonable isn't the same as theirs.
But, I suppose I should be happy enough as it is, we could have gotten skunked and we didn't. Good enuff for now anyway.
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