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 ast
week, the United States Court of Appeals for the Fifth Circuit released
a decision that, in ordinary times, would have gotten a lot of attention.
The decision, United
States
v. Emerson, recognized that the Second Amendment to the
U.S. Constitution guarantees individual citizens a right to own
guns.
It might seem
surprising that such a decision would be controversial; polls routinely
indicate that a large majority of citizens believe they have a constitutional
right to own a gun, and the language of the Second Amendment itself
would seem to support that belief. Yet, in the second half of the
20th Century, the notion of a right to arms under the Second Amendment
got little respect among the chattering classes.
In the 1960s
and 1970s, we were often told that the Second Amendment didn't protect
a right of individuals to own guns, but rather only a "collective
right" of the states to have militias — or "state
armies," as retired Chief Justice Warren Burger called them
in a Parade magazine article often quoted by gun-control
enthusiasts. Like collective property in a Communist country, the
"collective" Second Amendment right belonged to everyone
at once in theory, but to only the government in practice, and thus
was a nullity — the opposite of a genuine right.
If you disagreed
with the "collective right," you were said to be either
the victim or perpetrator of a fraud, something cooked up by zealots
at the National Rifle Association as a means of deluding the masses.
Informed people, we were told, knew better.
The 1939 Supreme
Court case United
States
v. Miller, we were told, had ruled that the Second Amendment
only protected the National Guard. And many lower federal courts
said so too.
The problem
with this is that it's not true. Miller, in fact, doesn't
even mention the National Guard, and offers, at most, extremely
ambiguous
support for the "collective right." By the 1990s,
many people — including leading legal scholars such as Laurence
Tribe of Harvard, William
Van Alstyne of Duke, Sanford
Levinson and Scot
Powe of the University of Texas, and Akhil
Amar of Yale — began pointing this out. Professor
Brannon Denning of Southern Illinois University unpacked the
many lower-court cases and discovered they didn't actually follow
Miller at all, and often claimed that the Supreme Court had
said things that, in fact, it never did.
Though there
have been a few scholarly
efforts to counter the academic individual-rights view, they
have fared poorly — particularly since their most famous star,
Michael
Bellesiles's Arming America, has been exposed as a hoax.
If you read Bellesiles's footnotes, you discover that his sources
often do not support his claims, and in fact frequently contradict
his thesis. National Review's Melissa
Seckora discovered that Bellesiles claimed to have examined
19th-century California probate records which had actually been
destroyed in the 1906 San Francisco earthquake.
So by the time
the Emerson case reached the Fifth Circuit, the stage had
been set for some serious rethinking. The court reviewed Miller
and found that, while the case was not entirely clear (UCLA
law professor Eugene Volokh teaches it as a model of ambiguity),
Miller was at the very least consistent with an individual
right, and certainly did not stand for a collective right.
The Fifth Circuit
reviewed the academic writing on the Second Amendment and found
that the work of the scholars mentioned above (and others) supported
the Second Amendment individual right. The court reviewed the many
decisions of lower federal courts and essentially agreed with Professor
Denning that their reasoning was flawed, superficial, and unpersuasive.
The Fifth Circuit
concluded:
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, such as the pistol involved here, that
are suitable as personal, individual weapons and are not of the
general kind or type excluded by Miller.
The Fifth Circuit
did hold, however, that Dr. Emerson's Second Amendment rights had
not been violated. He had been disarmed by a combination of a federal
law and a state law, which (in the court's opinion) worked together
to prove that he posed a distinct threat of domestic violence. Focusing
on this result, Violence Policy Center tried to spin the decision
as a victory for gun control. The VPC
celebrated the court upholding the particular gun law from a
facial challenge (even though the majority said that other persons,
based on their particular circumstances, might be able to prevail
on a constitutional challenge).
The VPC press
release concluded that "Justice Department prosecutors then
appealed the trial court's decision {finding the particular gun
law facially unconstitutional}, stating that it directly conflicted
with long-established legal precedent regarding the Second Amendment
laid down by the U.S. Supreme Court in United States v. Miller
[307 U.S. 174 (1939)] as well as the language of the Second Amendment
itself, which speaks in terms of a limited right to keep and bear
arms in connection with service in a state militia." The VPC
does not mention that the Fifth Circuit wrote 84 pages explaining
why law-abiding, nonviolent citizens (not only those in "service
in a state militia") have a Second Amendment right to own handguns,
rifles, and shotguns. If the Emerson decision counts as a
victory for gun control, then Second Amendment supporters must hope
for many more such Pyrrhic victories for the Violence Policy Center.
In contrast,
the Brady Center had the intellectual honesty to criticize
the Fifth Circuit's opinion, rather than pretending that a vigorous
defense of individual Second Amendment rights was good news for
the gun-control lobby.
Others have
tried to spin the Court's decision as mere "dicta" —
comments not related to its holding and hence possessed of no binding
authority — on the basis that the statute was not struck down.
The Court's decision runs like this:
1. Emerson
has Second Amendment rights, because all Americans have individual
Second Amendment rights.
2. The federal
statute that says that persons subject to domestic-violence restraining
orders may not possess a gun is not — on its face —
a violation of the Second Amendment.
3. Applying
the statute to Emerson, personally, almost violates the Second
Amendment, but is "barely" constitutional, the Fifth
Circuit ruled, because Texas courts do have sufficient due process
and required findings of fact in order to issue domestic-violence
restraining orders. Texas case law mandates that temporary restraining
orders (like other preliminary injunctions) must only issue when
"the applicant is threatened with an actual, irreparable
injury." The Texas Supreme Court insists that "An injunction
will not issue unless it is shown that the respondent will engage
in the activity enjoined."
4. Therefore,
Emerson may be prosecuted for violating the federal law that prohibits
gun possession by persons who are subject to state-court domestic-violence
restraining orders.
In a concurring
opinion, Judge Parker wrote that the majority's detailed exposition
of the Second Amendment individual right, while not necessarily
wrong, was irrelevant "dicta." In other words, because
the statute (as applied to Emerson) didn't violate the Second
Amendment anyway, it didn't matter if there was an individual Second
Amendment right, and therefore the Court should not have discussed
the Second Amendment so extensively. In Parker's view, the majority's
Second Amendment analysis is not even binding law on future courts
within the Fifth Circuit (Texas, Louisiana, and Mississippi).
The majority
opinion, however, specifically refuted Parker on this point, and
said that the Second Amendment ruling was very much part of Emerson
holding. Indeed, the Brady Center acknowledged that courts in the
Fifth Circuit would now adhere to individual Second Amendment rights,
although it also pointed out, quite correctly, that courts in other
Circuits do not have to. For example, a recent decision from the
Tenth Circuit (United States v. Haney, August 29,
2001) rejects an individual Second Amendment right, as do decisions
from several other circuit courts in recent years.
But within
the Fifth Circuit, Second Amendment rights are now the law of the
land. This is hardly the first time a court has spelled out a binding
rule of law without handing the challenger a victory. A good example
would be the 1979 Jackson
v. Virginia (443 U.S. 307), where the Supreme Court held
that to satisfy due process, the state had to prove every element
of the crime beyond a reasonable doubt. The Court then found that
the state had actually done that in the case at hand, and denied
Jackson's petition for habeas corpus relief. But the due-process
holding is considered just that, a holding, and is followed. Just
because Mr. Jackson, on the particular facts of his case, would
lose regardless of whether the due-process rule applied did not
mean the Court's announcement of the due-process rule was dicta.
Dr. Emerson
will very likely petition the full Fifth Circuit to rehear his case
en banc. (If the petition is granted, all judges on the circuit
would reexamine the case, rather than the three-judge panel which
decided the recent case. The Fifth Circuit is very closely divided
ideologically.) Eventually, Emerson might appeal to the Supreme
Court, though the Court is unlikely to be willing to take the case,
since the federal statute has not been declared unconstitutional.
What is clear,
however, is that gun-control groups and their revisionist "collective
rights" theory have been dealt a major setback, beyond any
spin. As Michael
Barone writes:
It will now
be very hard — I would say impossible — for any intellectually
honest judge to rule that the Second Amendment means nothing.
This setback
comes on top of numerous defeats in their efforts to drive gun manufacturers
out of business through product-liability lawsuits, the defeat (which
even Democrats like Bill Clinton and Joe Lockhart attribute to the
gun issue) of Al Gore in the 2000 presidential election, and their
ongoing failure to win in the court of public opinion.
As Barone adds:
"It is increasingly clear that the gun control advocates cannot
produce the safety they promise. . . . A meek, disarmed citizenry
is less safe than a proud, armed citizenry." At a time when
airline pilots are threatening to strike unless they are permitted
to carry guns, the notion of sensible gun rights appears especially
appealing.
Many supporters
of Second Amendment rights would have preferred that the Fifth Circuit
adopt an even more protective view of Second Amendment rights, and
void the federal statute because it did not explicitly require
that the restraining order be based on findings of dangerousness.
Instead, the Fifth Circuit ruled that, in Emerson's case, Texas
law implicitly required such findings, and that was good enough.
Yet because the poorly drafted federal statute was upheld, the result
should be reassuring to the large majority of Americans who support
both Second Amendment rights and some gun controls. Gun-prohibition
advocates have long warned that recognizing an individual Second
Amendment right would prevent governments from disarming convicted
violent felons, or would create a right to own nuclear weapons or
bazookas. Most Second Amendment advocates, on the other hand, have
always noted that — just as with other constitutional rights
like free speech — the right to arms is not absolute, and is
subject to reasonable regulation.
People can
differ in good faith about what constitutes reasonable regulation.
The Emerson decision, even if affirmed by the Supreme Court,
would not foreclose advocates of gun control (as opposed
to gun prohibition) from making a case in favor of laws to disarm
people who are provably dangerous. The Fifth Circuit noted that
the Second Amendment allows "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."
What Emerson
does in some federal courts for federal laws — as the state
constitutions of all but a few states already do, in state courts,
for state laws — is make it clear that ordinary, law-abiding
people cannot be prohibited from owning ordinary rifles, shotguns,
and handguns.
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