By Robert M. Hausman
Federal Court Reaffirms Second Amendment Rights
In a landmark ruling, the U.S. Fifth Circuit Court of Appeals in New Orleans recently held that the Second Amendment to the U.S. Constitution guarantees the right of individuals to keep and bear arms. The court rejected the arguments of the Clinton Administration’s Justice Department that the Second Amendment does not apply to individuals but merely recognizes the right of the states to arm its militias.
The case, United States v. Emerson, arose out of a Texas divorce suit in which a restraining order had been issued against the husband, Dr. Timothy Joe Emerson, who was subsequently charged with violating a federal law that prohibits the possession of firearms while under such a court order. The trial court dismissed the charges against Emerson saying the statute’s ban on possession of a firearm while a restraining order was in place, violated, among other rights, the doctor’s Second Amendment rights.
The Janet Reno Justice Department appealed. While the appeals court ultimately upheld the validity of the federal law -[§922(g)(8)] criminalizing gun possession by the subject of a domestic restraining order- finding that §922(g)(8) is constitutional as applied to Dr. Emerson, saying that the individual right to arms may be subjected to “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 decision is considered the strongest ruling to date interpreting the Second Amendment. The court said the words, “the right of the people” in the Second Amendment had the same meaning as when used in the First and Fourth Amendments, and, like those amendments in the Bill of Rights, secures an individual or personal right, not a collective or states’ right.
The court rejected “the collective rights” model (holding that the Second Amendment does not apply to individuals, but recognizes the right of a state to arm its militia). It also rejected the “sophisticated collective rights” argument (holding that the Second Amendment rights of ‘individuals’ to keep and bear arms only applies to members of an organized state militia while participating in militia activities if the federal or state governments fail to provide the firearms necessary for such militia service) for interpreting the Second Amendment. “We hold… that (the Second Amendment) protects the rights 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…,” the court said.
The Emerson opinion was written by Chief Judge William Ganwood and supported by Judge Harold DeMoss. The justices noted how the Clinton-Reno Justice Department steadfastly maintained that the Supreme Court’s decision in U.S. v. Miller (decided in 1939) mandated the court’s rejection of the individual right interpretation of the Second Amendment. “We disagree,” Judge Ganwood wrote, saying the Miller decision did not resolve the individual versus collective right issue, but “to the extent that Miller sheds light on the matter, it cuts against the Clinton-Reno position.”
In the Miller case, defendants were charged with transporting in interstate commerce (from Oklahoma to Arkansas) an unregistered Stevens double-barrel shotgun having barrels less than 18-inches in length without having the required stamped written order (from the federal government permitting the gun’s transportation), contrary to the National Firearms Act. The defendants challenged the validity of the indictment on Second Amendment grounds and ultimately quashed the indictment. The government, however, appealed to the Supreme Court. The defendants neither filed any brief nor made an appearance before the high court however.
The Supreme Court decided the Miller case on the basis of one of the government’s arguments which went, “that the Second Amendment has relation only to the right of the people to keep and bear arms for lawful purposes and does not conceivably relate to weapons of the type referred to in the National Firearms Act cannot be doubted. Sawed-off shotguns, sawed-off rifles and machine guns are clearly weapons which can have no legitimate use in the hands of private individuals.”
The Supreme Court in Miller held, “In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than eighteen inches in length at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly, it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”
The Miller court also defined the term “militia,” stating in part: “The signification attributed to the term militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the militia comprised all males physically capable of acting in concert for the common defense…ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Had the Miller defendants appeared and possibly asserted militia membership, the Supreme Court may have ruled differently.
Back to the Emerson case, “We turn, therefore, to an analysis of history and wording of the Second Amendment for guidance,” the Fifth Circuit court continued. In undertaking this analysis, we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment.”
To correct that deficiency, the court produced its own meticulous 84-page historical examination, concluding:
•“We have found no historical evidence that the Second Amendment was intended to convey militia power to the states, limit the federal government’s power to maintain a standing army, or applies only to members of a select militia while on active duty. All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.”
•“We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.”
The ruling, which George Mason University law professor Nelson Lund called. “The most important and favorable Second Amendment judicial decision in American history,” echoes U.S. Attorney General John Ashcroft in recognizing the right of individuals to keep and bear arms. “It is unlikely 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,” Lund concluded.
“The court’s decision is a very thorough and scholarly analysis of the actual text, history and jurisprudence of the Second Amendment. It reaffirms that the Second Amendment is a cherished civil liberty of equal importance to our nation as the First and Fourth Amendments,” said Robert T. Delfay, president and chief executive officer of the National Shooting Sports Foundation, the industry’s major trade organization. “Every American, not just firearms owners, should applaud this reaffirmation of the principles and beliefs of our founding fathers.”
National Rifle Association Institute for Legislative Action executive director, James Jay Baker, hailed the ruling, stating, “This is clear corroboration of what reputable historians and constitutional scholars have said consistently; that the Second Amendment, like other rights, is an individual right designed to protect rights of the people, not to expand the powers of government.” Baker went on to say, “Our client-the Second Amendment-has had its day in court. And the Second Amendment has emerged victorious.”
The deeper political meaning of the decision was summed up by NRA executive vice president Wayne LaPierre, who said: “This decision should be read by every American interested in knowing the true meaning of the Second Amendment. The court said in no uncertain terms that it’s an individual right. The court also cut through the political fog and media hype and the ruling exposes the real aims of those who advocate that the right to keep and bear arms applies to only government and not the people.
“In its opinion, the court clearly saw the dangers to individual liberty, when it defined the Janet Reno Justice Department’s position as being based on a model where the Second Amendment poses no obstacle to the wholesale disarmament of the American people. In totally rejecting that position, the court exposed the end game of those who would deny Second Amendment rights to individual Americans,” LaPierre pointed out.
The Brady Center for the Prevention of Handgun Violence had filed a “friend of the court” brief supporting the Janet Reno Justice Department’s misguided interpretation of the Second Amendment.
Anti’s Relaunch Assault On .50 Caliber Rifles
Using last fall’s terrorist attacks on the U.S. as a cover, the anti-gun Violence Policy Center (VPC) has relaunched an effort to get .50 caliber rifles outlawed. A similar effort launched in 1999 failed to gain much public notice, but the group is hoping its second attempt will be more successful with the war on terrorism in the news. Claiming that the “U.S. gun industry” sold at least twenty-five .50 caliber rifles to Al Qaeda, Osama bin Laden’s terror network, the VPC issued a lengthy report “Voting From the Rooftops,” focusing on .50 caliber rifles.
“We can be shocked, but not surprised that the gun industry would sell these dangerous military weapons to Al Qaeda,” said the study’s author, Tom Diaz, VPC’s senior policy analyst. “These .50 caliber sniper rifles are ideal tools for terror and assassination.”
Stating that the .50 BMG round “can slice through body armor like a knife through warm butter, knock down hovering helicopters, rip up armored limousines, destroy radar dishes, and ignite bulk fuel tanks-all at the length of 10 football fields,” a summary of the round’s merits are quoted from an “enthusiastic essayist in the authoritative journal” Small Arms Review.
“The fifty caliber’s ability to be deployed by one individual and give that person the capability of discretely engaging a target at ranges of over one mile away are definitely alluring from a tactical standpoint. While the .50 cal. can sometimes seem to be exaggerated, it is hard to imagine a round that at ranges over a mile and a half away, has more kinetic energy than a .44 Magnum, and has unbeatable penetration as well.”
The report goes on, in sensationalist terms, to assert that “.50 caliber sniper rifles” can create disaster at industrial plants handling explosive, toxic or volatile chemicals; can endanger aircraft, bulk fuel tanks, fuel trucks and other airport facilities; and that .50 caliber rifles can be found in the arsenals of domestic and foreign terrorist and extremist groups, and that the American gun industry is to blame.
Noting that in most of America, a .50 cal. rifle can be bought by nearly anyone aged 18 or over, the report goes on to call for bringing .50 cal. rifles under the provisions of the National Firearms Act, making them subject to the same regulations as pertain to machine guns. “Today, .50 cal. rifles are still easier to buy than handguns; a youth of 18 years can legally buy a sniper rifle, but cannot buy a handgun until age 21,” the VPC said. VPC also called for the use of the civil justice system to hold manufacturers of such rifle accountable, and the passage by the states of legislation establishing strict liability for damages resulting from the use or misuse of such arms. While the report was mentioned in an article appearing in The New York Times, little mention seemed to be made elsewhere.
I want to thank Robert Hausman for bringing this up again. We all know what a load of baloney the Violence Policy Center’s junk science and sensationalistic embellishments to reality are often like, and here they are spearheading a charge against fifty cal rifles. I read the report, and misquotes and mischaracterizations abound. Funny what results you can come up with if you are trying to support a position, at all costs. Remember, oppose this type of thing wherever you see it, get a copy of that report, complain intelligently to Josh Sugarmann from the VPC, and if you know any of their donors, see if you can talk some sense into them. As always, follow the money. – Dan
The author publishes two of the small arms industry’s most widely read trade newsletters. The International Firearms Trade covers the world firearms scene, and The New Firearms Business covers the domestic market. Visit www.FirearmsGroup.com. He may be reached at: FirearmsB@aol.com.
|This article first appeared in Small Arms Review V5N6 (March 2002)|
and was posted online on February 28, 2014