 elson
Lund is a professor of law at the George Mason University School of
Law.
Kathryn
Jean Lopez:
Is the 5th
U.S. Circuit Court of Appeals decision on Tuesday a win or blow
to the 2nd Amendment?
Nelson Lund: This is the most important
and favorable Second Amendment judicial decision in American history.
For the first time, a federal court of appeals has unambiguously
held that the right to keep and bear arms belongs to individual
citizens, and rejected the preposterous but judicially regnant theory
that Second Amendment rights belong to governments or can only be
exercised in the service of a government.
Lopez: Should a restraining order like
the one in this case, against and ex-husband, be sufficient "to
support the deprivation ... of the defendant's Second Amendment
rights"?
Lund: The court held that such state-court
restraining orders can justify disarming someone only when
state law requires the order to be based on a real threat of lawless
violence.
Lopez: Are there any circumstances
that would legally deprive a citizen of his Second Amendment rights?
Lund: There
are lots of situations in which citizens can be deprived of their
right to arms, most obviously when the individual involved poses
an especially acute threat to the safety of others, as with a violent
felon or a person who is mentally ill.
Lopez: Will this ruling likely find
its way to the Supreme Court?
Lund:
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.
Lopez: Do you expect that our post-911
nation will likely dramatically reconsider its view of the 2nd Amendment?
Lund:
The repeated failure of the "gun-free zone" concept, most
recently on September 11, has made it increasingly difficult for
people to argue with a straight face that our Second Amendment rights
are an outmoded relic of the past. Attorney General Ashcroft, and
now one federal court of appeals, have recognized that the right
of individuals to keep and bear arms does exist. But this is mostly
a matter of government officials catching up with what much of the
nation already believed.
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